J. S44004/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

RONALD BETHEA, : No. 2099 EDA 2014

:

 Appellant :

Appeal from the PCRA Order, June 12, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0305131-2005

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016

Ronald Bethea appeals from the order of June 12, 2014, dismissing his 

first petition for post-conviction collateral relief filed pursuant to the Post 

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Appointed counsel, 

Craig Mitchell Cooley, Esq., has filed a petition to withdraw. We grant 

Attorney Cooley permission to withdraw and affirm the order dismissing 

appellant’s PCRA petition.

On September 19, 2007, following a jury trial, appellant was found 

guilty of conspiracy to commit third-degree murder in connection with the 

shooting death of Stephen Brown. The underlying facts, which are not 

germane to the instant appeal, are set forth in this court’s memorandum 

affirming the judgment of sentence on direct appeal at pages two through 

five. Commonwealth v. Bethea, No. 234 EDA 2008, unpublished 
J. S44004/16

- 2 -

memorandum at 2-5 (Pa.Super. filed January 20, 2010). On November 26, 

2007, appellant was sentenced to 20 to 40 years’ imprisonment. This court 

affirmed the judgment of sentence on January 20, 2010. Id. On 

September 7, 2010, our supreme court denied appellant’s petition for 

allowance of appeal. Commonwealth v. Bethea, 71 EAL 2010 

(per curiam).

On July 15, 2011, appellant filed a timely counseled PCRA petition, 

alleging that conspiracy to commit third-degree murder is not a cognizable 

crime in Pennsylvania, and that trial counsel was ineffective for failing to 

raise this issue in the trial court. (Docket #12.) The Commonwealth filed a 

motion to dismiss, and appellant filed a response. On January 16, 2014, the 

PCRA court issued a Rule 9071 notice of intent to dismiss the petition without 

a hearing. On June 10, 2014, PCRA counsel, Norris E. Gelman, Esq., filed a 

motion to withdraw. (Docket #16.) Two days later, on June 12, 2014, 

appellant’s PCRA petition was dismissed. (Docket #17.) A timely pro se

notice of appeal was filed on July 11, 2014. (Docket #18.) On July 31, 

2014, appellant was directed to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days (August 21, 

 

1

Pa.R.Crim.P. 907.
J. S44004/16

- 3 -

2014). (Docket #19.)2 Appellant complied on August 20, 2014, by filing a 

pro se Rule 1925(b) statement, raising the same issues raised in his PCRA 

petition. (Docket #20.) Subsequently, on September 16, 2014, 

Attorney Gelman filed an application to withdraw in this court, which was 

granted on October 3, 2014. This court remanded the case to the PCRA 

court to determine whether appellant was eligible for court-appointed 

counsel and, if so, to appoint counsel for appellant in connection with this 

appeal. On November 24, 2014, the PCRA court issued a Rule 1925(a) 

opinion. Current counsel, Attorney Cooley, was appointed to represent 

appellant for appeal purposes on March 19, 2015.

Initially, we note that Attorney Cooley has filed an Anders brief rather 

than a Turner/Finley no-merit letter. Anders v. California, 386 U.S. 738 

(1967); Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

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

an appeal from the denial of a PCRA petition, a Turner/Finley letter is the 

appropriate filing. However, we may accept an Anders brief instead. See 

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

2004), appeal denied, 882 A.2d 477 (Pa. 2005) (“[B]ecause an Anders

 

2 We note that Attorney Gelman was still counsel of record and had not been 

given permission to withdraw. See Commonwealth v. White, 871 A.2d 

1291, 1294 (Pa.Super. 2005) (“once counsel has entered an appearance on 

a defendant’s behalf he is obligated to continue representation until the case 

is concluded or he is granted leave by the court to withdraw his 

appearance”), quoting Commonwealth v. Quail, 729 A.2d 571, 573 

(Pa.Super. 1999).
J. S44004/16

- 4 -

brief provides greater protection to the defendant, we may accept an 

Anders brief in lieu of a Turner/Finley letter.”). See also 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (guiding 

Pennsylvania courts’ application of Anders). Despite counsel’s error, we 

find that he has complied substantially with the Turner/Finley

requirements. Hence, we overlook his procedural misstep. In addition, 

Attorney Cooley has attached a copy of the letter to appellant advising him 

of counsel’s intention to withdraw and of his rights going forward. 

(“Anders/No-Merits Brief,” Exhibit 12.) See Commonwealth v. Friend, 

896 A.2d 607, 615 (Pa.Super. 2006) (“PCRA counsel must 

contemporaneously forward to the petitioner a copy of the application to 

withdraw, which must include (i) a copy of both the ‘no-merit’ letter, and 

(ii) a statement advising the PCRA petitioner that, in the event the [] 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”) 

(footnote omitted). Appellant has not responded to Attorney Cooley’s 

petition to withdraw. 

This Court’s standard of review regarding an order 

denying a petition under the PCRA is whether the 

determination of the PCRA court is supported by the 

evidence of record and is free of legal error. 

Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 

795, 799 n. 2 (2005). The PCRA court’s findings will 

not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. 

Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
J. S44004/16

- 5 -

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), 

appeal denied, 940 A.2d 365 (Pa. 2007).

[T]he right to an evidentiary hearing on a 

post-conviction petition is not absolute. 

Commonwealth v. Jordan, 772 A.2d 1011, 1014 

(Pa.Super.2001). It is within the PCRA court’s 

discretion to decline to hold a hearing if the 

petitioner’s claim is patently frivolous and has no 

support either in the record or other evidence. Id. 

It is the responsibility of the reviewing court on 

appeal to examine each issue raised in the PCRA 

petition in light of the record certified before it in 

order to determine if the PCRA court erred in its 

determination that there were no genuine issues of 

material fact in controversy and in denying relief 

without conducting an evidentiary hearing. 

Commonwealth v. Hardcastle, 549 Pa. 450, 454, 

701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238, 

1239-1240 (Pa.Super. 2004).

[W]e begin with the presumption that counsel was 

effective. A claimant establishes ineffective 

assistance of counsel when he demonstrates that 

[1] the underlying claim is of arguable merit; 

[2] that counsel’s action or inaction was not 

grounded on any reasonable basis designed to 

effectuate the appellant’s interest; and finally, 

[3] that counsel’s action or inaction was prejudicial 

to the client. For an action (or inaction) by counsel 

to be considered prejudicial to the client, there must 

be a reasonable probability that the outcome of the 

proceedings would have been different. All three 

prongs of this test must be satisfied. If an appellant 

fails to meet even one prong of the test, his 

conviction will not be reversed on the basis of 

ineffective assistance of counsel. 
J. S44004/16

- 6 -

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal 

denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks 

omitted).

Relying on Commonwealth v. Clinger, 833 A.2d 792 (Pa.Super. 

2003), appellant contends that criminal conspiracy to commit third-degree 

murder is not a cognizable offense in Pennsylvania. In Clinger, the 

defendant and his brother severely beat the victim, who was rendered 

unconscious and was lucky to have survived. Id. at 793. The defendant 

pled guilty to criminal conspiracy to commit third-degree murder. A 

pre-sentence motion to withdraw the plea was denied, and the defendant 

was sentenced to 20 to 40 years’ imprisonment. On appeal, this court held 

that there was no factual basis for the plea where it was impossible under 

the law to commit the crime of conspiracy to commit murder in the third 

degree:

In the present case, since the crime of third degree 

murder was not accomplished, appellant could only 

be guilty of conspiracy to commit a crime if he 

intended that crime to be accomplished. Logic 

dictates, however, and this Court has recognized, 

that it is impossible for one to intend to commit an 

unintentional act.

Id. at 796 (citation omitted). Therefore, this court in Clinger held that the 

defendant’s motion to withdraw his guilty plea should have been granted. 

Id. at 796-797.
J. S44004/16

- 7 -

As the PCRA court recognized, however, Clinger was abrogated by our 

supreme court in Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 2013), 

which held that the absence of intent to kill does not preclude a defendant 

from being convicted of conspiracy to commit third-degree murder: “The act 

sufficient for third degree is still a purposeful one, committed with malice, 

which results in death--clearly, one can conspire to such an intentional act.” 

Id. at 1191. Therefore, it appears that Clinger is no longer good law. In 

addition, Clinger is factually distinguishable from the instant case, where in 

Clinger, the victim survived the incident. In the case sub judice, the 

victim died as the result of multiple gunshot wounds. As such, the 

underlying issue, that appellant could not be convicted of conspiracy to 

commit third-degree murder, lacks arguable merit, and trial counsel cannot 

be held ineffective for failing to have raised it.

Furthermore, even though Clinger was still good law at the time of 

appellant’s trial in 2007, Clinger was essentially an outlier, and there was a 

substantial body of case law holding that a defendant can be convicted of 

conspiracy to commit murder in the third degree. See Fisher, 80 A.3d at 

1191-1193 (“Our review of Pennsylvania case law regarding conspiracy to 

commit third degree murder reveals convictions for this crime have long 

been recognized as valid.”), citing, e.g., Commonwealth v. Mobley, 359 

A.2d 367 (Pa. 1976); Commonwealth v. Wanamaker, 444 A.2d 1176, 

1178 (Pa.Super. 1982); Commonwealth v. La, 640 A.2d 1336, 1345-1346 
J. S44004/16

- 8 -

(Pa.Super. 1994). Indeed, the Fisher court characterized Clinger’s holding 

that conspiracy to commit third-degree murder is a legal impossibility as an 

abrupt change in course. Fisher, 80 A.3d at 1193. As the PCRA court 

observes, Clinger departed from established precedent, and even if trial 

counsel had raised the issue, it most likely would have failed. (PCRA court 

opinion, 11/24/14 at 4.) Therefore, appellant cannot establish that he was 

prejudiced by trial counsel’s alleged omission in this regard.

Having conducted an independent review of the entire record, this 

court is satisfied that the issues raised in appellant’s petition are meritless 

and that the PCRA court did not err in denying appellant’s petition. 

Accordingly, we will grant Attorney Cooley’s petition to withdraw and affirm 

the order denying appellant’s PCRA petition. 

Petition to withdraw granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2016