J-S91038-16

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYE EDWIN HOLLOWAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 297 MDA 2016

Appeal from the PCRA Order January 27, 2016

In the Court of Common Pleas of Columbia County 

Criminal Division at No(s): CP-19-CR-0000067-2014

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 27, 2017

Tye Edwin Holloway (“Appellant”) appeals from the order entered in 

the Court of Common Pleas of Columbia County dismissing his petition for 

collateral relief filed under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546. Appellant’s counsel has filed a petition for leave 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), 

and Appellant has filed a pro se motion for the substitution of appointed 

counsel. We affirm the order denying Appellant post-conviction relief, grant 

counsel’s petition to withdraw, and deny Appellant’s pro se motion for 

substitution of appointed counsel.
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On March 10, 2014, Appellant entered an open guilty plea to 

possession with intent to deliver (“PWID”), two counts of possession of a 

small amount of marijuana, criminal trespass, and two counts of defiant 

trespass and recklessly endangering.1 On March 27, 2014, the trial court 

sentenced him to a standard range sentence of 16 to 48 months’ 

incarceration, boot camp eligible, with the other sentences running 

concurrently.

Appellant filed no direct appeal. On January 28, 2015, Appellant filed 

a timely pro se PCRA petition. The PCRA court appointed counsel and 

presided over a hearing dated January 20, 2016, at which Appellant 

complained about some of the circumstances surrounding his decision to 

plead guilty to PWID. 1/20/16 at 3-4. Specifically, Appellant testified:

APPELLANT: The reason why I filed this [PCRA petition] is due 

to the fact that my previous lawyer, Leslie Bryden, didn’t hear 

the facts of the case and, also, didn’t check into as far as the CIs 

that were used in my case like the CIs that were used in my 

case were junkies as well, they get high. The one actually got 

arrested a month and five days after I got arrested. And the 

things that I pointed in the case it just doesn’t make sense like I 

feel as if I shouldn’t have got [sic] the time that I got because 

there was so much – I can’t really say foul play but there was so 

many things in the case that it should have never happened. 

And due to everything that they say that happened and stuff 

really didn’t happen. Like it was more the confidential 

informants that were used than me.

N.T. at 3-4. 

____________________________________________

1 35 P.S. §§ 780-113(a)(30) and (a)(16), 18 Pa.C.S.A. §§ 3503(a)(1), 

3503(b)(1)(v), and 2705, respectively.
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On cross-examination, Appellant conceded that he pled guilty of his 

own free will and completely understood the elements of his crimes and the 

consequences of entering a plea. N.T. at 4-9. Plea counsel also testified 

that Appellant entered his plea voluntarily and intelligently, without the 

influence of coercion or false promises. N.T. at 9-11. On cross-examination, 

counsel denied advising Appellant that his was not a case to be tried. 

Instead, she testified that she discussed with him the factors surrounding his 

arrest at a methamphetamine lab and explained that many confidential 

informants whom juries deem credible are, themselves, drug users. N.T. at 

13. The decision of whether to proceed to trial or plead guilty, however, 

remained with Appellant, she insisted. Id.

The PCRA court recalled going over the plea colloquies with Appellant 

and ascertaining that Appellant was entering a knowing and voluntary plea. 

N.T. at 14. Finding plea counsel’s testimony before it both credible and 

consistent with its own recollection of Appellant’s plea, as well, the court 

concluded there was no basis for Appellant’s PCRA claim and dismissed his 

petition. This timely appeal followed.

Appellant presents the following question for our review:

WHETHER THE DEFENDANT’S APPEAL OF THE DENIAL OF HIS 

PCRA PETITION IS WHOLLY WITHOUT MERIT?

Appellant’s brief at 5.

Our standard of review of a PCRA court's denial of a PCRA petition is 

limited to examining whether the PCRA court's determination is supported by 
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the record evidence and free of legal error. Commonwealth v. Wilson, 

824 A.2d 331, 333 (Pa.Super. 2003) (en banc). Before we review 

Appellant's claim, however, we must ascertain whether counsel satisfied the 

requirements to withdraw. Commonwealth v. Freeland, 106 A.3d 768, 

774-75 (Pa.Super. 2014). The Court in Freeland explained:

The Turner/Finley decisions provide the manner for postconviction counsel to withdraw from representation. The 

holdings of those cases mandate an independent review of the 

record by competent counsel before a PCRA court or appellate 

court can authorize an attorney's withdrawal. The necessary 

independent review requires counsel to file a “no-merit” letter 

detailing the nature and extent of his review and list each issue 

the petitioner wishes to have examined, explaining why those 

issues are meritless. The PCRA court, or an appellate court if the 

no-merit letter is filed before it, see Turner, supra, then must 

conduct its own independent evaluation of the record and agree 

with counsel that the petition is without merit. See

[Commonwealth v.] Pitts[, 603 Pa. 1, 3 n.1, 981 A.2d 875, 

876 n.1 (2009)].

In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super. 2006) 

abrogated in part by Pitts, supra, this Court imposed 

additional requirements on counsel that closely track the 

procedure for withdrawing on direct appeal. Pursuant to Friend, 

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. Though Chief Justice Castille noted in Pitts that this 

Court is not authorized to craft procedural rules, the Court did 

not overturn this aspect of Friend as those prerequisites did not 

apply to the petitioner in Pitts. See Pitts, supra at 881 

(Castille, C.J., concurring).

After the decision in Pitts, this Court held in Commonwealth v. 

Widgins, 29 A.3d 816 (Pa.Super. 2011), that the additional 

procedural requirements of Friend were still applicable during 

collateral review.
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Id.

Here, counsel submitted his Turner/Finley letter as a brief pursuant 

to the requirements of Anders v. California, 386 U.s. 738 (1967). The 

procedure to withdraw from a direct appeal imposes stricter requirements 

than those imposed in a Turner/Finley situation. Commonwealth v. 

Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004). Although counsel’s 

statement of the question presented couches the issue as whether the 

appeal is meritless, the brief’s argument section identifies and addresses the 

issue that Appellant wishes to raise.

Counsel sent Appellant a letter informing him of his rights, pursuant to 

Friend, and referencing the withdrawal petition and brief as being enclosed. 

Neither the petition nor brief, however, contain proof of service on Appellant. 

Moreover, at the conclusion of counsel’s Friend letter, dated August 12, 

2016, he incorrectly advised Appellant, “If I am granted leave to withdraw 

and you still wish to proceed with an [a]ppeal, you may hire private counsel 

or represent yourself.” In light of counsel’s incorrect advice, this Court 

entered its Order of August 19, 2016, informing Appellant that he could file 

his response to counsel’s “no-merit” letter, either pro se or via privately 

retained counsel, within 30 days. Appellant subsequently filed a pro se

application for relief, requesting new appointed counsel and discovery. 

Based on this procedural history, we conclude that counsel’s 

Turner/Finley no-merit letter complies with all pertinent requirements. 

See Freeland, 106 A.3d at 774-75. Accordingly, we conduct our own 
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independent evaluation of the record to ascertain whether we agree with 

counsel that Appellant is not entitled to relief. See id.

Appellant's claim that plea counsel induced him to enter an unknowing 

plea asserts the ineffective assistance of counsel. We presume counsel is 

effective. Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). 

To overcome this presumption and establish the ineffective assistance of 

counsel, a PCRA petitioner must prove, by a preponderance of the evidence: 

“(1) the underlying legal issue has arguable merit; (2) that counsel's actions 

lacked an objective reasonable basis; and (3) actual prejudice befell the 

petitioner from counsel's act or omission.” Commonwealth v. Johnson, 

966 A.2d 523, 533 (Pa. 2009) (citations omitted). “A petitioner establishes 

prejudice when he demonstrates that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceeding would 

have been different. Id. A claim will be denied if the petitioner fails to meet 

any one of these requirements. Commonwealth v. Springer, 961 A.2d 

1262, 1267 (Pa.Super. 2008) (citing Commonwealth v. Natividad, 938 

A.2d 310, 322 (Pa. 2007)); Commonwealth v. Jones, 942 A.2d 903, 906 

(Pa.Super. 2008).

In addressing Appellant’s claim of an involuntarily made guilty plea, 

the PCRA court considered the testimony of both plea counsel and Appellant, 

and it drew upon its own recollection of having conducted a thorough plea 

colloquy during which Appellant demonstrated an understanding of what he 

was doing. The PCRA court, therefore, concluded that Appellant entered his 
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guilty plea voluntarily, knowingly, and intelligently. We agree with the PCRA 

court’s findings, which are supported by the record and free of legal error, 

and discern no merit with Appellant’s claim. 2

PCRA order denying relief based on allegations of ineffective assistance 

of counsel in inducing an unknowing guilty plea is Affirmed. Counsel’s 

petition to withdraw is Granted. Appellant’s pro se application for 

substitution of appointed counsel is Denied.

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2 Additionally, we deny Appellant’s petition for substitution of appointed 

counsel. This Court has previously held that

when counsel has been appointed to represent a petitioner in 

post-conviction proceedings as a matter of right under the rules 

of criminal procedure and when that right has been fully 

vindicated by counsel being permitted to withdraw under the 

procedure authorized in [Turner/Finley], new counsel shall not 

be appointed and the petitioner, or appellant must thereafter 

look to his or her own resources for whatever further 

proceedings there might be.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 n.1 (Pa.Super. 2012), 

quoting Commonwealth v. Maple, 559 A.2d 953, 956 (Pa.Super. 1989). 

Here, we permit PCRA counsel to withdraw pursuant to Turner/Finley after 

reviewing the record and concluding that no arguably meritorious claims 

exist. Accordingly, Appellant is not entitled to the appointment of new 

counsel to pursue his PCRA appellate claims, as he was required, instead, to 

look to his own resources to retain new counsel, or proceed pro se, as we 

advised him by our Order of August 19, 2016. See Rykard. As such, we 

deny Appellant’s petition for the appointment of new counsel to represent 

him on the present appeal.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/27/2017