J-S11004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

IRA NEAL GOLDBERG

Appellant No. 732 MDA 2014

Appeal from the PCRA Order March 31, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0004558-2011

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2015

Appellant, Ira Neal Goldberg, appeals from the order denying his 

petition for relief pursuant to the Post Conviction Relief Act. Additionally, his 

appointed counsel, Marc J. Semke, Esquire, has filed a petition to withdraw 

as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

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

After careful review, we grant permission to withdraw and affirm the PCRA 

court’s order.

The following history of Goldberg’s criminal conviction is taken from 

this court’s memorandum resolving Goldberg’s direct appeal.

Appellant and his wife (Wife) have been married for over 20 

years. At some point prior to June 2011, Wife began undergoing 

treatment for a pelvic mass that doctors believed might be 

malignant. Wife was scheduled to have the mass surgically 

removed on June 16, 2011. The operation was to be performed 
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by Dr. McCormick at York Gynecologic Oncology at the Apple Hill 

Women’s Center.

On June 14, 2011, two days before the scheduled surgery, the 

couple received a phone call from Dr. McCormick’s office 

informing them that the surgery was cancelled. The office 

explained that it is their policy that surgical patients undergo 

pre-operative testing, including an electrocardiogram (EKG), a 

chest x-ray, and blood work. If any of these test yields 

abnormal results, the patient is advised to see his or her family 

practitioner before he or she will be cleared for surgery. In this 

case, Wife’s EKG was abnormal and she was instructed that the 

scheduled surgery would be cancelled to allow her to follow-up 

with her family doctor who would determine whether she could 

be medically cleared for surgery.

At approximately 1:30 p.m., after learning that the surgery was 

cancelled, Appellant telephoned Dr. McCormick’s office and 

spoke with medical assistant April Reisinger (Reisinger). 

Reisinger testified that Appellant was irate, screaming and 

cursing. At some point, Appellant told her “[Appellant and Wife] 

were going to show up [June 16, 2011] for her surgery or Dr. 

McCormick would be attending his own fucking funeral.” 

Reisinger “told him that was considered a threat and [Dr. 

McCormick’s office] could have him arrested for that.” She 

further informed him that she was not going to talk to him and 

he could call back once he had calmed down. She instructed 

Appellant to contact Wife’s primary care physician who “wanted 

her to have further cardiac testing before her surgery.” 

Reisinger reported the incident to her office manager, Karen 

Snider (Snider).

A few minutes after the first phone call, Appellant called Dr. 

McCormick’s office again. This time he spoke with office 

assistant Annette Travis (Travis). In contrast with the previous 

phone call to Reisinger, Travis described Appellant’s voice as 

“calm.” Appellant told Travis “the phone call has been made, my 

guns are on order and either [Wife’s] surgery will be done or Dr. 

McCormick will die on Thursday [June 16, 2011].” Travis 

testified that she did not get the chance to respond because 

Appellant immediately disconnected the call. Travis reported the 

incident to Snider. Snider testified that after Travis reported the 

second phone call, she contacted York Hospital security and 

called the police.
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At trial, Appellant admitted that he could have possibly made 

threats during the first phone call, but denied making any 

threats during the second phone call. Appellant also testified 

that he waited until he cooled down for a couple of minutes 

before making the second phone call.

Based on the above, Appellant was charged with terroristic 

threats and harassment. On February 8, 2012, following a jury 

trial, Appellant was found guilty of terroristic threats. On March 

21, 2012, Appellant was sentenced to a term of five years’ 

probation and 250 hours of community service. No postsentence motions were filed. Appellant filed a timely notice of 

appeal on April 19, 2012.

Commonwealth v. Goldberg, No. 781 MDA 2012, at 1-4 (Pa. Super. 

January 3, 2013) (unpublished memorandum).

On direct appeal, Goldberg challenged the sufficiency of the evidence 

and two of the instructions the trial court had given the jury. This Court 

affirmed the judgment of sentence. Less than nine months later, Goldberg 

filed a pro se petition pursuant to the PCRA. Attorney Semke was appointed

by the PCRA court and filed an amended petition.

The PCRA court notified Goldberg of its intention to dismiss his 

amended petition, and Goldberg filed a premature notice of appeal to this 

court. However, on the next day, the PCRA court entered the order denying 

the petition, rendering Goldberg’s notice of appeal timely. See Pa.R.A.P., 

Rule 905(a)(5).

We begin by addressing Attorney Semke’s petition to withdraw. Our 

Supreme Court has summarized the procedure for withdrawal of courtappointed counsel in collateral attacks on criminal convictions as follows:
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Independent review of the record by competent counsel is 

required before withdrawal is permitted. Such independent 

review requires proof of:

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

extent of his [or her] review;

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

petitioner wished to have reviewed;

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.

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

omitted). Additionally, this Court has added a requirement: 

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 court 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.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) 

(emphasis omitted; citation omitted). Counsel in this case has complied 

with the mandates of Turner and Finley, as summarized in Pitts, as well as 

complying with the mandate of Widgins. Thus, we must determine whether 

we agree with counsel’s assessment of Goldberg’s claims. 

Our standard of review of a PCRA court’s denial of a petition for postconviction relief is well-settled. We must examine whether the record 
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supports the PCRA court’s determination and whether the PCRA court’s 

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d 

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed 

unless there is no support for the findings in the certified record. See 

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our 

scope of review is limited by the parameters of the PCRA. See 

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).

Goldberg first contends that the PCRA court erred in finding that he

could not establish prejudice from trial counsel’s failure to call two witnesses 

at trial. We presume that counsel was effective and an appellant bears the 

burden of proving otherwise. See Commonwealth v. Steele, 961 A.2d 

215, 223 (Pa. 2007). 

To prevail on his ineffectiveness claims, Appellant must plead 

and prove, by a preponderance of the evidence, three elements: 

(1) the underlying legal claim has arguable merit; (2) counsel 

had no reasonable basis for his action or inaction; and (3) 

Appellant suffered prejudice because of counsel’s action or 

inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

“A failure to satisfy any prong of the test for ineffectiveness will require 

rejection of the claim.” Commonwealth v. Morrison, 878 A.2d 102, 105 

(Pa. Super. 2005) (citation omitted). Counsel cannot be deemed ineffective 

for failing to raise a meritless claim. See Commonwealth v. Fears, 86 

A.3d 795, 803 (Pa. 2014).
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The PCRA court found that Goldberg had not pled that either witness 

was willing to testify on his behalf, nor had Goldberg pled that the absence 

of this testimony was prejudicial. Attorney Semke, in his letter to Goldberg, 

noted that both witnesses are attorneys with the Pennsylvania Office of 

General Counsel. Both had received letters of complaint filed by Goldberg 

against Dr. McCormick which were written after Goldberg had been charged 

in this matter. Attorney Semke further asserted that the witnesses have no 

direct knowledge of what occurred and that the proposed testimony was 

irrelevant to the issues at trial.

Goldberg did not respond to this letter, and therefore these assertions 

are unchallenged before us. As a result, we can find no error in the PCRA 

court’s conclusion that a hearing was unnecessary to determine the merit of 

Goldberg’s ineffectiveness of counsel claims.

In his final issue on appeal, Goldberg asserts that the PCRA court 

erred in concluding that he could not establish prejudice from appellate 

counsel’s failure to challenge, on appeal, the trial court’s denial of a request 

for a mistrial pursuant to a discovery violation committed by the 

Commonwealth. In his letter to Goldberg, Attorney Semke concluded that 

the evidence at issue, an e-mail from Travis to Snider, was essentially 

identical to Snider’s testimony at trial, as well as Snider’s statement in the 

police report. Thus, Attorney Semke opined, the Commonwealth’s discovery 

violation did not deprive Goldberg of a fair trial, and a mistrial was not an 
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appropriate remedy. See Commonwealth v. Ligons, 773 A.2d 1231, 1237 

(Pa. 2001).

Once again, Goldberg does not contest this analysis. We find this 

analysis is an accurate assessment of the circumstances, and, as a result we 

conclude that the PCRA court did not err in concluding that Goldberg could 

not prove any prejudice arising from the failure to raise this claim on direct 

appeal. Our independent review of the record does not reveal any other 

meritorious issues available to Goldberg.

As we conclude that none of Goldberg’s issues on appeal have any 

merit, we grant permission to withdraw and affirm the order of the PCRA 

court.

Order affirmed. Permission to withdraw as counsel granted. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015