J-S51003-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

ROBERT RICARDO MCDONALD, 

 Appellant No. 518 MDA 2014 

Appeal from the Order Entered March 7, 2014 

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0000020-2012 

BEFORE: BOWES, OTT, and MUSMANNO, JJ. 

MEMORANDUM BY BOWES, J.: FILED AUGUST 13, 2014 

Robert Ricardo McDonald appeals from the order entered March 7, 

2014, denying his first counseled PCRA petition. Counsel has filed a petition 

to withdraw from representation and a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967).1

 We grant counsel’s petition to withdraw 

and affirm. 

____________________________________________ 

1

 The proper procedure to withdraw in post-conviction relief matters is not 

via an Anders brief. Rather, counsel is to submit a Turner/Finley no-merit 

letter/brief. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

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

(“Turner/Finley”). Despite this Court’s repeated explanations, attorneys 

continue to confuse the separate standards. Nonetheless, because the 

Anders line of decisions is considered to afford greater protections than 

does Turner/Finley, the error has no effect on the outcome of this case. 
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A jury found Appellant guilty of fleeing or attempting to elude a police 

officer, recklessly endangering another person, and accidents involving 

damage to an attended vehicle, and the court adjudged Appellant guilty of 

summary offenses of reckless driving and failure to obey a traffic control 

device.2

 These charges arose out of an incident on October 31, 2011, where 

Appellant fled from police after an officer attempted to effectuate a traffic 

stop. Specifically, the officer was aware that Appellant did not have a valid 

driver’s license and activated his lights and siren. Rather than stop, 

Appellant sped away and proceeded to run through red lights and stop signs. 

Appellant then abandoned his vehicle in his own driveway while it was still 

moving causing it to strike the officer’s cruiser.

Following Appellant’s trial, the court sentenced Appellant on July 31, 

2012. The court imposed a sentence of eleven and one-half to twenty-three 

months imprisonment to be followed by three years of probation. A timely 

direct appeal ensued, and this Court affirmed on April 13, 2013. 

Commonwealth v. McDonald, 75 A.3d 559 (Pa.Super. 2013) (unpublished 

memorandum). Appellant timely filed a pro se PCRA petition on May 13, 

2013, which asserted ineffective assistance of trial counsel. The court 

appointed counsel on May 24, 2013, and directed counsel to file an amended 

____________________________________________ 

2

 A prior panel of this Court incorrectly indicated that Appellant was also 

found guilty of driving without a license. However, the trial court found 

Appellant not guilty of that charge. See N.T., 5/14,12, at 292-293. 
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petition. Appellant filed an amended petition on July 1, 2013, and the 

Commonwealth filed a response on July 29, 2013, acquiescing to a hearing. 

Accordingly, the court conducted an evidentiary hearing on October 22, 

2013. 

Therein, Appellant’s wife, Nydeah Brown McDonald,3

 testified that 

Appellant had been picked up from work around the time in which the 

incident had occurred and that her brother had admitted to taking her 

vehicle, which was the car used in the incident. Robert Steel, the individual 

who allegedly transported Appellant to work, also testified at the PCRA 

hearing. He provided that he arrived at Appellant’s residence and took 

Appellant to work, providing an alibi. Both witnesses testified at Appellant’s 

preliminary hearing and trial counsel knew of their existence. Indeed, 

Mrs. McDonald did testify at trial. 

Trial counsel testified, however, that while she spoke with both 

witnesess at the preliminary hearing neither Mrs. McDonald nor Mr. Steel 

informed her at the preliminary hearing that Appellant was with Mr. Steel on 

the night of the incident. She did become aware in early January 2012 that 

Mrs. McDonald claimed that Appellant was traveling to work at the time of 

the crimes. Further, although Mr. Steel spoke with trial counsel’s 

investigator, he provided that person with a false address and inactive 

____________________________________________ 

3

 While Mrs. McDonald testified that she and Appellant are married, she 

provided it was a common law marriage. 
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telephone number. Accordingly, trial counsel was unable to contact him. 

She further averred that Mrs. McDonald told her on the day of trial that 

Mrs. McDonald’s brother admitted to being the culprit, but Mrs. McDonald 

was unaware of his whereabouts. 

Counsel elected not to present an alibi defense and instead argued 

that Mrs. McDonald’s brother was driving the van and Appellant was only a 

passenger. She noted that she elected not to utilize an alibi defense 

because the Commonwealth could introduce cell phone records showing that 

Appellant was in the area in which the incident occurred. In addition, she 

remarked that she investigated a possible alibi defense but found that the 

alibi witnesses were either not cooperative or were inconsistent. Trial 

counsel set forth that one alleged alibi witness, Naomi Anderson, was 

supposedly with Mr. Steel and Appellant but could not be located. In 

addition, trial counsel’s investigator spoke with the owner of Appellant’s 

workplace, a bar, and others who worked at the establishment. None of 

these individuals were at the bar during the pertinent period. 

Following the hearing, the court established a briefing schedule and 

counsel submitted an additional amended petition on November 4, 2013, 

and the Commonwealth filed an answer to that petition on November 20, 

2013. The court denied Appellant’s petition on March 7, 2014 via an order 

and supporting opinion. The PCRA court concluded that Mr. Steel’s failure to 

provide accurate contact information precluded trial counsel from being able 
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to present him as a witness. It also rejected Mr. Steel’s PCRA testimony as 

incredible. The court further discussed that Mrs. McDonald’s brother was not 

available to testify and determined that trial counsel’s reasons for not 

advancing an alibi defense were reasonable. 

Appellant timely appealed and the court directed him to file and serve 

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. 

Appellant complied, but counsel therein indicated that he would be seeking 

to withdraw because he concluded Appellant’s issue was frivolous.4

Accordingly, Appellant filed a petition to withdraw and Anders brief. 

As we set forth, “[t]he Turner/Finley decisions provide the manner for 

post-conviction counsel to withdraw from representation.” Commonwealth 

v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012). In order to withdraw, 

counsel must conduct an independent review of the record and file a “nomerit” letter or brief detailing the nature and extent of his review, listing 

each issue the petitioner wishes to raise and why those issues are meritless. 

Id. Where the no-merit letter or brief is filed with this Court, we then must 

conduct our “own independent evaluation of the record and agree with 

counsel that the petition is without merit.” Id. 

____________________________________________ 

4

 Pa.R.A.P. 1925(c)(4) allows attorneys during criminal direct appeals to 

indicate that they will be filing an Anders brief. There, however, is no 

analogous provision specific to PCRA appeals, which though governed by 

criminal procedural rules are considered civil. Whether Rule 1925(c)(4) 

extends to PCRA counsel withdrawals has yet to be considered in a published 

decision. 
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Additionally, “counsel is required to contemporaneously serve upon his 

client his no-merit letter and application to withdraw along with a statement 

that if the court granted counsel's withdrawal request, the client may 

proceed pro se or with a privately retained attorney.” Id. Counsel has 

complied with these directives.5

 Accordingly, we proceed to independently 

review the record to determine whether Appellant’s amended petition does 

not entitle him to relief. 

The issue leveled in Appellant’s Anders brief is: “[d]id the PCRA court 

err by failing to find that trial counsel provided ineffective assistance by 

failing to call alibi witnesses during Appellant’s trial?” Anders brief at 4. In 

order to demonstrate that counsel was ineffective a petitioner must show: 

“(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. Where the petitioner fails to meet any aspect 

of this test, his claim fails.” Commonwealth v. Henkel, 90 A.3d 16, 

30 (Pa.Super. 2014) (en banc).

Further, we examine the record “in the light most favorable to the 

prevailing party at the PCRA level.” Id. at 20. In conducting this review we 

____________________________________________ 

5

 Counsel initially failed to supply Appellant with a statement that he could 

proceed pro se or with privately hired counsel. See Commonwealth v. 

Doty, 48 A.3d 451 (Pa.Super. 2012). Accordingly, this Court issued an 

order on April 25, 2014, directing counsel to so notify Appellant and file a 

copy of that notification with this Court. Counsel complied, and Appellant 

has not filed a response to counsel’s application to withdraw. 
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examine “the findings of the PCRA court and the evidence of record[.]” Id. 

In doing so, “we grant great deference to the factual findings of the PCRA 

court and will not disturb those findings unless they have no support in the 

record.” Id. Accordingly, “we will not ‘disturb a PCRA court's ruling if it is 

supported by evidence of record and is free of legal error.’” Id. Of course, 

no deference is due to a PCRA court’s legal conclusions, and “[w]here the 

petitioner raises questions of law, our standard of review is de novo and our 

scope of review is plenary.” Id. 

Where the issue involves an attorney’s failure to call a witness, the 

petitioner must prove: (i) the witness existed; (ii) the witness was available 

to testify; (iii) counsel knew of, or should have known of, the existence of 

the witness; (iv) the witness was willing to testify; and (v) the absence of 

the testimony was so prejudicial as to have denied the defendant a fair trial. 

Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011); 

Commonwealth v. Cox, 983 A.2d 666, 692 (Pa. 2009).

Counsel sets forth that the record supports the PCRA court’s 

determination that trial counsel acted reasonably in not proffering an alibi 

defense. Instantly, the PCRA court found that Mr. Steel was not credible in 

his testimony and that, by providing inaccurate information to trial counsel, 

it prevented her from using him as a witness. It also ruled that 

Mrs. McDonald’s brother was not available to testify and that trial counsel 
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conducted an investigation into other potential alibi witnesses. That 

investigation did not reveal any helpful witnesses who were willing to testify. 

Here, the record amply supports the PCRA court’s legal conclusions and 

factual findings. Since trial counsel had a reasonable basis for not 

presenting an alibi defense, Appellant’s claim preserved below is without 

merit and he is not entitled to relief. 

Order affirmed. Petition of Christopher P. Lyden, Esq. to withdraw 

granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/13/2014