J-S61006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DOUGLAS NATHANIEL COLDEN

Appellant No. 21 MDA 2015

Appeal from the PCRA Order December 3, 2014

In the Court of Common Pleas of Bradford County

Criminal Division at No(s): CP-08-CR-0000621-2005

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 30, 2015

Appellant, Douglas Nathaniel Colden, appeals pro se from the order 

entered on December 3, 2014, in the Court of Common Pleas of Bradford 

County, which denied his petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”).1 Additionally, Colden’s court-appointed attorney, Robert G. 

Fleury, Esq., has filed an application to withdraw his appearance 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 conclude that none of Colden’s claims of ineffective assistance of 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. 
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counsel merit relief. Accordingly, we grant Attorney Fleury’s application to 

withdraw and affirm the order dismissing Colden’s PCRA petition.

The facts and procedural history may be summarized as follows. 

Colden was accused of obtaining money at two banks and one grocery store 

on the same day by requesting repetitive, confusing currency exchanges, 

known as a “shortchange” scheme. After a jury trial, Colden was convicted 

of three counts of theft by deception.2 The trial court later sentenced him to 

an aggregate term of 42 months’ to 12 years’ imprisonment. 

The trial court denied Colden’s post-sentence motions. This Court 

affirmed the judgment of sentence, and our Supreme Court denied his 

petition for allowance of appeal. 

Thereafter, Colden filed a PCRA petition pro se. Attorney Fleury was 

appointed to represent Colden. The PCRA court subsequently dismissed 

Colden’s petition as meritless, after providing Rule 907 notice. This timely 

appeal followed.

Attorney Fleury has filed a petition for leave to withdraw and a nomerit letter. Our Supreme Court has summarized the procedure for 

withdrawal of court-appointed counsel in collateral attacks on criminal 

convictions as follows.

____________________________________________

2 18 Pa.C.S.A. § 3922.
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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). 

Attorney Fleury complied with the mandates of Turner and Finley, as 

summarized in Pitts, as well as with the mandate of Widgins. Colden filed 

a response to Attorney Fleury’s Finley letter, as well as a separate “motion 
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for relief.3” We must now determine whether we agree with counsel’s 

assessments of Colden’s claims. 

“Our standard of review of a trial court order granting or denying relief 

under the PCRA calls upon us to determine whether the determination of the 

PCRA court is supported by the evidence of record and is free of legal error.” 

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013) 

(citation omitted). We review the PCRA court’s legal conclusions de novo. 

See Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation 

omitted).

On appeal, Colden raises three ineffective assistance of counsel issues 

for our review. In reviewing an allegation of ineffective assistance of 

counsel, we begin with the assumption that counsel was effective. See 

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). “To plead and 

prove ineffective assistance of counsel a petitioner must establish: (1) that 

the underlying issue has arguable merit; (2) counsel’s actions lacked an 

objective reasonable basis; and (3) actual prejudice resulted from counsel’s 

act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. 

Super. 2013) (en banc) (citation omitted). If the petitioner “fails to plead or 

meet any elements of the above-cited test, his claim must fail.” Id. (citation 

omitted). 

____________________________________________

3 We deny this motion. Colden’s response adds nothing to our analysis and 

has no merit. 
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“Arguable merit exists when the factual statements are accurate and 

could establish cause for relief. Whether the facts rise to the level of 

arguable merit is a legal determination.” Commonwealth v. Barnett, 121 

A.3d 534, 540 (Pa. Super. 2015) (citation omitted). 

“[A] defendant [raising a claim of ineffective assistance of counsel] is 

required to show actual prejudice; that is, that counsel’s ineffectiveness was 

of such magnitude that it ‘could have reasonably had an adverse effect on 

the outcome of the proceedings.’” Commonwealth v. Gribble, 863 A.2d 

455, 472 (Pa. 2004) (citation omitted). 

In his first issue, Colden contends that the PCRA court erred in 

concluding that trial counsel was not ineffective for failing to hire an 

independent investigator. As to this claim, the PCRA court concluded that 

Colden could not articulate any specific details as to what an independent 

investigator would have found and how the outcome of the trial would have 

been affected as a result. We agree with the PCRA court’s reasoning and 

conclude that Colden has failed to establish that the underlying claim has 

arguable merit. Thus, Colden failed to establish his claim for ineffective 

assistance of counsel, and we agree with Attorney Fleury that Colden’s first 

issue merits no relief. 

In his second issue, Colden asserts that the PCRA court erred in 

concluding that trial counsel was not ineffective for failing to object to the 

identification testimony at trial. The PCRA court rejected this claim on the 
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basis that it had been addressed by the trial court in Colden’s post-trial 

motions and by this Court on appeal. 

This ineffective assistance of counsel claim was not previously 

litigated. “A claim is deemed to be previously litigated under the PCRA if the 

highest appellate court in which the petitioner could have had review as a 

matter of right has ruled on the merits of the issue.” Commonwealth v. 

Zook, 887 A.2d 1218, 1226-1227 (Pa. 2005) (citing 42 Pa.C.S.A. § 

9544(a)(2)). In Colden’s direct appeal, he asserted that the trial court erred 

by failing to give a Kloiber instruction to the jury because the pre-trial 

identification was unduly suggestive and the identification testimony of the 

witnesses at trial was unreliable. See Commonwealth v. Colden, 1313 

MDA 2006, at 3-6 (Pa. Super., filed 8/1/07) (unpublished memorandum). 

Ineffective assistance of counsel was never at issue on direct appeal. In any 

event, we agree with the PCRA court that Colden is not entitled to relief. 

See Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009) 

(“[W]e may affirm the decision of the [PCRA] court if there is any basis on 

the record to support the [PCRA] court’s action; this is so even if we rely on 

a different basis in our decision to affirm.”). 

In fashioning its holding in Colden’s direct appeal, this Court ruled on 

the underlying merits of the issue at hand when it determined that there was 

no basis for a cautionary instruction under Kloiber because the identification 

testimony at trial was reliable. The panel further explained that “even if we 
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were to find that the pre-trial identification was unduly suggestive, the 

Commonwealth has established an independent basis for these 

identifications.” Colden, 1313 MDA 2006, at 5. The panel noted that

[e]ach witness had a clear opportunity to observe [Colden] faceto-face in close quarters, either across a teller window or 

cashier’s counter. Each incident took place in well-lighted 

business establishments and was measureable in minutes rather 

than seconds. Thus, each victim had ample opportunity to 

observe [Colden]....

Id. 

Trial counsel had no viable basis upon which to object to the 

identification. Thus, an assertion that trial counsel was ineffective lacks 

arguable merit. Colden failed to establish his claim for ineffective assistance 

of counsel, and we agree with Attorney Fleury that Colden’s second issue 

merits no relief. 

Finally, in his third issue, Colden asserts that the PCRA court erred in 

concluding that trial counsel was not ineffective for failing to object to the 

testimony of the grocery store clerk. The store clerk testified that on the 

day that Colden conducted a shortchange transaction at the store, she had 

been informed by an employee of the Peoples State Bank that Colden had 

been at the bank and changed a lot of money there as well. See N.T. Trial, 

5/23/06, at 33-34. Colden argues that counsel should have objected to the 

statement as inadmissible hearsay, or alternatively, moved for a mistrial on 

the basis that the statement was overly prejudicial. 
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The PRCA court concluded that counsel did not err in failing to object 

to this statement because although the statement constituted hearsay, it 

was not prejudicial to Colden because it was the testimony of an employee 

of one of the other victims in the case.

We disagree with the PCRA court’s reasoning, but we agree with its 

conclusion. We do not consider the hearsay statement to be non-prejudicial 

merely because it was uttered by an employee of one of the other victims in 

the case. It is clear from the record that the grocery store clerk testified 

that the bank employee specifically identified Colden as the person who 

changed a lot of money with the bank. See id. This statement was 

incriminatory of the defendant, and its admission constituted prejudicial 

hearsay.

Nevertheless, Colden’s claim must fail because he has failed to show 

how counsel’s failure to object to the statement had an actual adverse effect 

on the outcome of the proceedings. Based on our review of the record, we 

find that the properly admitted evidence overwhelmingly establishes 

Colden’s guilt, and we can find no reasonable probability that had the 

statement not been admitted, the result would have been different. Thus, 

the admission of the statement did not result in actual prejudice. 

Accordingly, we find that Colden failed to establish his claim for 

ineffective assistance of counsel, and we agree with Attorney Fleury that 

Colden’s final issue merits no relief. 
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As a result, we concur with Attorney Fleury’s conclusion that Colden’s 

appeal is wholly without merit. We therefore grant Attorney Fleury’s 

application to withdraw, and affirm the PCRA court’s order denying PCRA 

relief. 

Order affirmed. Petition to withdraw as counsel granted. Motion 

denied. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2015