J-S37034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD HENRY BOSSERT

Appellant No. 2904 EDA 2014

Appeal from the PCRA Order September 11, 2014

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0002172-2012

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.: FILED JUNE 26, 2015

Richard Henry Bossert appeals from the order of the Court of Common 

Pleas of Lehigh County, which dismissed his petition filed pursuant to the 

Post Conviction Relief Act (PCRA).1 Additionally, counsel for Bossert has filed 

an application to withdraw from representation and a Turner/Finley nomerit letter.2

 Upon review, we affirm the order dismissing the petition based 

on the well-written opinion of the Honorable James T. Anthony and grant 

counsel’s request to withdraw.

On September 4, 2012, Bossert pled nolo contendere to terroristic 

threats and simple assault before Judge Anthony. On October 5, 2012, the 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
J-S37034-15

- 2 -

court sentenced Bossert to an aggregate term of thirty to sixty months’ 

incarceration. Bossert filed a timely pro se PCRA petition on June 21, 2013. 

The court appointed counsel, who filed an amended petition on April 7, 

2014, alleging that trial counsel, John Baurkot, Esquire, was ineffective for 

failing to file a motion to modify and reduce sentence. The court held a 

hearing on May 27, 2014, at which Bossert and Attorney Baurkot testified. 

After the submission of memoranda of law by Bossert and the 

Commonwealth, the court dismissed the PCRA petition by opinion and order 

dated September 11, 2014. 

Bossert filed a timely notice of appeal, and at the direction of the trial 

court he filed a statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). By order dated December 3, 2014, Judge Anthony 

indicated that his opinion dated September 11, 2014 satisfied the 

requirements of Rule 1925(a). Accordingly, no further opinion was issued.

We begin by assessing whether counsel has satisfied the 

Turner/Finley requirements for withdrawal.

“Independent review of the record by competent counsel is required 

before withdrawal is permitted.” Commonwealth v. Widgins, 29 A.3d 

816, 817 (Pa. Super. 2011). Such independent review requires proof of:

1) A “no-merit” letter by PCRA counsel detailing the nature and 

extent of his review;

2) The “no-merit” letter by PCRA counsel listing each issue the 

petitioner wished to have reviewed;
J-S37034-15

- 3 -

3) The PCRA counsel’s “explanation,” in the “no-merit” letter, of 

why the petitioner’s issues were meritless;

4) The PCRA court conducting its own independent review of the 

record; and

5) The PCRA court agreeing with counsel that the petition was 

meritless.

Id. at 817-18 (alterations and citations omitted). Further, the Widgins

Court explained:

The Supreme Court [in Commonwealth v. Pitts, 981 A.2d 875 

(Pa. 2009),] did not expressly overrule the additional 

requirement imposed by the [Commonwealth v.] Friend[, 896 

A.2d 607 (Pa. Super. 2006),] decision, i.e., that PCRA counsel 

seeking to withdraw contemporaneously forward to the 

petitioner a copy of the application to withdraw that includes (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.

Id. at 818. Instantly, we have reviewed counsel’s petition to withdraw and 

conclude it complies with the requirements set forth by the Widgins Court. 

Accordingly, we proceed with the merits of the appeal.

Bossert presents the following issue for our review:

The trial court erred in failing to find counsel ineffective for not 

appealing [his] sentence after [Bossert] instructed counsel to 

appeal [his] sentence.

Turner/Finley Letter, at 1/22/15, at 2.

In reviewing an appeal from the denial of PCRA relief, “our standard of 

review is whether the findings of the court are supported by the record and 
J-S37034-15

- 4 -

free of legal error.” Commonwealth v. Martin, 5 A.3d 177, 182 (Pa. 

2010) (citations omitted).

To be eligible for relief under the PCRA, Bossert must prove by a 

preponderance of the evidence that his conviction resulted from “ineffective 

assistance of counsel which, in the circumstances of the particular case so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). 

“Counsel is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the 

defendant must show that the underlying claim had arguable merit, counsel 

had no reasonable basis for his or her action, and counsel’s action resulted 

in prejudice to the defendant. Commonwealth v. Pierce, 527 A.2d 973, 

975-77 (Pa. 1987).

In his opinion, Judge Anthony correctly notes that where a petitioner 

alleges that counsel failed to file a motion for reconsideration of sentence, 

the appropriate prejudice inquiry is whether the motion would likely have 

resulted in a different sentence. Commonwealth v. Reaves, 923 A.2d 

1119 (Pa. 2007). Judge Anthony explains why Bossert would not have 

succeeded on this claim.

Judge Anthony then explains that prejudice is presumed where a 

petitioner proves that he asked counsel to file a direct appeal, but counsel 
J-S37034-15

- 5 -

failed to do so. Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). 

Here, the court found that Bossert’s testimony that he asked counsel to file 

an appeal was not credible, thus precluding relief under Lantzy. 

The court made an additional finding that trial counsel did not discuss 

the filing of an appeal with Bossert. However, it concluded that Bossert did 

not suffer actual prejudice because there were no non-frivolous grounds for 

appeal and Bossert did not demonstrate that he was interested in appealing. 

See Commonwealth v. Markowitz, 32 A.3d 706 (Pa. Super. 2011).

After our independent review of the Turner/Finley letter, the 

Commonwealth’s brief, the record and the relevant law, we agree with Judge 

Anthony’s analysis and affirm on the basis of his opinion. We instruct the 

parties to attach a copy of Judge Anthony’s decision in the event of further 

proceedings.

Petition to withdraw as counsel granted.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2015
1 

1 18 Pa.C.S.A. § 2706(a)(1) and§ 2701(a)(1 ), respectively. 

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

On June 21, 2013, the defendant filed a prose Motion for Post-Conviction 

of the Lehigh County Public Defender's Office. 

filed. At all relevant times, the defendant was represented by John F. Baurkot, Esquire, 

of probation on the simple assault. No post-sentence motions or a direct appeal were 

State Correctional Institution on the terroristic threats, and a consecutive 2 year period 

imprisonment for a period of not less than 2 years, 6 months nor more than 5 years in a 

Report (PSI), and on October 5, 2012, I sentenced the defendant to undergo 

On September 4, 2012, the defendant pleaded nolo contendere to one count 

each of Terroristic Threats and Simple Assault.1 I ordered a Pre-sentence Investigation 

OPINION 

James T. Anthony, Judge: 

* * * * * * * * * * 

Sean T. Poll, Esquire, Conflict Counsel 

For the defendant 

Heather Gallagher, Esquire, Assistant District Attorney, 

For the Commonwealth 

APPEARANCES: 

* * * * * * * * * * 

Defendant 

RICHARD BOSSERT, 

vs. 

COMMONWEALTH OF PENNSYLVANIA No. 2172-2012 

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 06/12/2015 02:58 PM
2 

2 David D. Ritter, Esquire, was appointed on July 18, 2013. Attorney Ritter requested, and was granted, 

an extension of time to file his amended petition. Subsequently, Attorney Ritter retired from his position as 

conflict counsel, and Sean Poll, Esquire, was appointed on January 27, 2014. 

3 Attorney Poll indicated to me that he was proceeding on the amended petition only. 

4 Notes of Testimony (N.T.), Nofo Contendere Hearing, September 4, 2012, p. 19. 

the parties was that the terroristic threats count would be an open plea, and the simple 

contendere plea to Terroristic Threats and Simple Assault. The agreement reached by 

On September 4, 2012, the defendant appeared before me and entered a nolo 

suffered bruising on her body and was injured from the assault by the defendant. 

defendant eventually left the home when Ms. Jones's daughter arrived. Ms. Jones 

from the defendant, at which point he again shoved Ms. Jones. During the assault, the 

defendant stated to Ms. Jones, 'Tm going to kill you and then kill myself ."4 The 

ingest more bath salts. Ms. Jones pushed the spoon containing the bath salts away 

high on bath salts. The defendant grabbed Ms. Jones, pulled her hair, and attempted to 

residence. On the night in question, Ms. Jones arrived home and found the defendant 

Richard Bossert, is the half-brother of Ms. Jones and was staying with Ms. Jones at her 

18, 2012, at around 9:30 P.M. at the home of the victim, Ruby Jones. The defendant, 

The charges in this case stemmed from an incident that occurred on February 

Factual and Procedural History 

under advisement, and both parties submitted briefs. 

Attorney Poll orally amended his petition to include a claim that trial counsel was · 

ineffective for failing to file a direct appeal." Following the hearing, I took the petition 

sentence motion. An evidentiary hearing was held on May 27, 2014, at which time 

petition, the defendant claims his trial counsel was ineffective for failing to file a post9541-9546. I appointed conflicts counsel to represent the defendant, and on 'April 7, 

2014, Sean Poll, Esquire, filed an Amended Petition for Post Conviction Relief.2 In the 

Circulated 06/12/2015 02:58 PM
3 

5 The standard range minimum on the terroristic threats, a misdemeanor 1, is 6-16 months, plus or minus 

3 months for the aggravated and mitigated ranges. The standard range minimum on the simple assault, a 

misdemeanor 2, is 6-12 months, minus 3 for the mitigated range. 

post-sentence and appeal rights with his attorney. He replied, "Yeah. I'm not appealing 

Notably, after I imposed the sentence, I asked the defendant if he went over his 

1. The defendant has 9 previous assault related convictions; 

2. The victim in this case is the defendant's half-sister; 

3. The defendant could have been charged with sexual assault; and 

4. To give the defendant any less of a sentence would depreciate from the 

seriousness of the crimes. 

sentence: 

on the terroristic threats, and I stated on the record my reasons for imposing such a 

Institution, followed by 2 years of probation.5 This was a statutory maximum sentence 

thereafter I sentenced the defendant to 30 months to 60 months in a State Correctional 

testimony, the information provided in the PSI, and the arguments of the parties, and 

The victim in this case, Ruby Jones, testified for the Commonwealth. I considered this 

terroristic threats count, followed by 2 years of probation on the simple assault count. 

recommendation from the probation officer was 19 months to 60 months on the 

On October 5, 2012, the defendant appeared for sentencing. The 

defendant's plea, and ordered a pre-sentence investigation report. 

and that he understood what he was doing by pleading no contest. I accepted the 

in order to get him to enter his plea: He stated the plea was made of his own-free will 

he stated he understood. The defendant stated that no threats or promises were made 

s.entences and fines that he was facing, and advised him of his right to a jury trial, and 

oral, on-the-record colloquy with him. I apprised the defendant of the maximum 

threats count. The defendant completed a written colloquy, and I also conducted an 

assault plea would be binding probation, to be served consecutive to the-terroristic 

Circulated 06/12/2015 02:58 PM
4 

6 Notes of Testimony (N.T.), Sentencing Hearing, October 5, 2012, p.28. 

7 Notes of Testimony, Hearing, October 5, 2012, p.2. 

8 Attorney Baurkot has been an attorney for the Lehigh County Public Defender's Office for twenty-six 

years. 

the underlying claim is of arguable merit; (2) there was no reasonable basis for 

1985). To establish a claim of ineffective assistance, a defendant must prove that (1) 

otherwise rests with the defendant. Commonwealth v. McNeil, 487 A.2d 802 (Pa. 

Generally speaking, trial counsel is presumed effective and the burden to prove 

Discussion 

would talk to his client about filing an appeal. 

file an appeal, he would do so, and if he believed there were issues for appeal, he 

was excessive or more than he was expecting. Additionally, he said if he was asked to 

it would be his normal practice to ask for a reconsideration if he believed a sentence 

recall the defendant whispering to him that he wanted to file an appeal, he did state that 

charges that were not pursued. Although Attorney Baurkot testified that he could not 

sentence based on the facts of the case, the defendant's prior record, and certain 

what he could expect at sentencing. AttorneyBaurkot was expecting a maximum 

of his ineligibility. Notably, at no time during this discussion did the defendant indicate 

he was unhappy with his sentence.7 

. According to Attorney Baurkot,8 he had a conversation with the defendant about 

that he was not RRRI eligible:We went back on the record, and ladvised the defendant 

statements and left the courtroom, he was brought back as I had failed to inform him 

that he wanted to appeal his sentence. After the defendant allegedly made these 

that statement, while still standing up at the bench, he whispered to Attorney Baurkot 

nothinq." At the defendant's PCRA hearing, he testified that immediately after he made 

Circulated 06/12/2015 02:58 PM
5 

counsel's action or inaction; and (3) counsel's error prejudiced the defendant. Id. 

Prejudice is established where the defendant shows that "but for the errors and 

omissions of counsel, there is a reasonable probability that the outcome of the 

proceedings would have been different." Commonwealth v. Kimball, 724 A.2d 326, 333 

(Pa. 1999) 

.ln the context of an alleged failure by.counsel to file a post-sentence motion for · 

reconsideration of sentence, the proper prejudice inquiry is whether such a motion 

would have likely resulted in a different sentence. Commonwealth v. Reaves, 923 A.2d 

1119 (Pa. 2007). Here, the defendant does not provide any evidence to support the 

contention that had counsel filed a motion for reconsideration, I would have reduced the 

sentence. He does not point to any new evidence that he would have provided to me in 

a motion to reconsider, and absent any new information, I would not have disturbed my 

sentence. As such, he has failed to meet the prejudice prong on this claim of ineffective 

assistance of counsel, and the claim must fail. Commonwealth v. Robinson, 877 A.2d 

433 (Pa. 2005) (failure to prove any one of the prongs is sufficient to dismiss the claim). 

In the context of an alleged failure by counsel to file a direct appeal, prejudice will 

be presumed if a defendant can prove that he asked counsel to file a direct appeal and 

counsel failed to do so. Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999). "Mere 

allegation will not suffice; the burden is on [the defendant] to plead and prove that his 

request for an appeal was ignored or rejected by trial counsel." Commonwealth v. 

Harmon, 738 A.2d 1023, 1024 (Pa.Super. 1999), appeal denied, 753 A.2d 815 (Pa. 

2000). Even where no request is made, counsel may still be held ineffective if he does 

not consult with his client about the client's appellate rights. Commonwealth v. 

Circulated 06/12/2015 02:58 PM
6 

In deciding whether the petitioner suffered actual prejudice, the High Court 

listed several relevant factors. For example, did the petitioner plead guilty, 

thereby decreasing the number of appealable issues? Pertinent 

considerations also include any instructions given by the court with 

Where counsel has not advised his client about the client's appellate 

rights, the question becomes whether that failure caused actual prejudice 

to the petitioner, i.e., 'but for counsel's deficient failure to consult with him 

about an appeal, he would have timely appealed.' In analyzing whether 

there is a constitutional mandate to consult with a defendant about his 

appellate rights, the Supreme Court opined that a court must determine if 

'a rational defendant would want to appeal (for example, because there 

are nonfrivolous grounds for appeal), or (2) that this particular defendant 

reasonably demonstrated to counsel that he was interested in appealing.' 

Where a petitioner can prove either factor, he establishes that his claim 

has arguable merit. 

Nevertheless, the secondary query of whether counsel consulted the 

defendant persists. In this context, however, counsel is not per se 

ineffective and a Strickland/Pierce analysis is necessary to decide whether 

counsel rendered constitutionally ineffective assistance by failing to advise 

his client about his appellate rights .... 

counsel cannot be presumed ineffective. 

not believe there were any viable appellate issues. Since there was no request made, 

raised on appeal, he would talk to his client about filing an appeal. In this case, he did 

so. He also stated that in a case where he believed there were issues that could be 

him to file an appeal, he did state that if he were asked to file an appeal, he woulddo 

· Although AttorneyBaurkot could not recall a conversation where the-defendant asked 

he would not appeal, he turned to Attorney Baurkot and asked him to file an appeal. 

I do. not find credible the defendant's testimony that just moments after telling me · · 

defendant, in some manner, displayed signs of desiring an appeal." Id. 

arises either because there were issues of merit to raise on direct appeal or the 

470 (2000)). "Such ineffectiveness, however, will only be found where a duty to consult 

Markowitz, 32 A3d 706, 714 (Pa.Super. 2011) (citing Roe v. Flores-Ortega, 528 U.S. 

Circulated 06/12/2015 02:58 PM
7 

9 N.T., Sentencing Hearing, 10/5/12, p.28. 

10 Id. at 29. 

September 11 , 2014 

petition is denied. 

Based on the foregoing, the defendant is not entitled to relief and his PCRA 

Conclusion 

assistance of counsel must also fail. 

advice did not cause the defendant to forego filing an appeal, this claim of ineffective 

Since I find the defendant did not request an appeal and that Attorney Baurkot's 

them." 

he reviewed those rights with the defendant and was satisfied he understood 

the defendant stated he went over his post-sentence and appeal rights with 

Attorney Baurkot and said he understood them;9 and Attorney Baurkot confirmed 

appealing;" the defendant pleaded guilty, thereby limiting his appealable issues; 

did not "reasonably demonstrated to counsel that he was interested in 

no "rational defendant would want to appeal;" as discussed above, the defendant 

record that the sentence I imposed was exactly what the. defendant expected, so 

the defendant, I do not find ~his prejudiced the defendant. It appears from the .. 

Although Attorney Baurkot testified he did not discuss filing an appeal with· 

(footnote omitted). 

Commonw_ealth v. Markowitz, 32 A.3d 706 (Pa.Super. 2011) (citations omitted) 

respect to the defendant's right to appeal as well as evidence of 

nonfrivolous grounds for appeal. Of course, evidence of nonfrivolous 

grounds of appeal is not required. 

Circulated 06/12/2015 02:58 PM