J-S28025-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELIEZER ALMANZAR 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1100 MDA 2019

Appeal from the PCRA Order Entered April 26, 2019

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0000294-2014

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED JULY 31, 2020

Appellant, Eliezer Almanzar, appeals from the order entered on April 26, 

2019 denying his first petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. In this appeal from the denial of PCRA 

relief, Appellant's court-appointed counsel filed an application to withdraw and 

a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

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

banc). Upon review, we grant counsel’s petition to withdraw and affirm the 

order denying Appellant's PCRA petition.

We briefly summarize the facts and procedural history of this case as 

follows. On December 29, 2014, a jury convicted Appellant of one count each 

of involuntary deviate sexual intercourse (IDSI) with a child, aggravated 
J-S28025-20

- 2 -

indecent assault of a child, and corruption of minors.1 The convictions 

stemmed from an incident, on September 7, 2013, wherein Appellant licked 

the vagina of the four-year-old daughter of Appellant’s then-girlfriend.2 

Following Appellant’s convictions, the trial court sentenced Appellant to six to 

12 years of incarceration for IDSI and to a concurrent term of five to 10 years 

of incarceration for corruption of minors. Appellant’s conviction for 

aggravated indecent assault merged with IDSI for sentencing purposes. We 

affirmed Appellant’s judgment of sentence in an unpublished memorandum 

filed on July 20, 2016. Commonwealth v. Almanzar, 154 A.3d 862 (Pa. 

Super. 2016) (unpublished memorandum). Pertinent to this appeal, the prior 

panel, among other things, determined that Appellant’s confession to police 

was voluntary and not coerced and, therefore, suppression of his statements 

was unwarranted. On April 25, 2017, our Supreme Court denied further 

appellate review. Commonwealth v. Almanzar, 168 A.3d 1275 (Pa. 2017).

On October 3, 2017, Appellant filed a timely PCRA petition. The PCRA 

court held a hearing on August 30, 2018. On April 26, 2019, the PCRA court 

denied relief by order and accompanying opinion. Following some confusion 

regarding Appellant’s representation and filing deadlines, the PCRA court 

ultimately reinstated Appellant’s right to file an appeal nunc pro tunc on June 

____________________________________________

1 18 Pa.C.S.A. §§ 3123(b), 3125(b), and 6301(a)(1)(ii), respectively.

2 Relevant to this appeal, Appellant confessed to police that the incident 

occurred. 
J-S28025-20

- 3 -

26, 2019. The Commonwealth did not oppose reinstatement of Appellant’s 

appeal rights. This timely appeal resulted.3

Prior to addressing the merits of the issues raised on appeal, we must 

determine whether counsel met the procedural requirements necessary to 

withdraw. Counsel seeking to withdraw in PCRA proceedings

must review the case zealously. Turner/Finley counsel must 

then submit a “no-merit” letter to the [PCRA] court, or brief on 

appeal to this Court, detailing the nature and extent of counsel's 

diligent review of the case, listing the issues which petitioner 

wants to have reviewed, explaining why and how those issues lack 

merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the 

“no-merit” letter/brief; (2) a copy of counsel's petition to 

withdraw; and (3) a statement advising petitioner of the right to 

proceed pro se or by new counsel.

Where counsel submits a petition and no-merit letter that satisfy 

the technical demands of Turner/Finley, the court — [the PCRA] 

court or this Court — must then conduct its own review of the

merits of the case. If the court agrees with counsel that the claims 

are without merit, the court will permit counsel to withdraw and 

deny relief.

Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016) 

(citations and original brackets omitted). Here, counsel fulfilled all of the 

____________________________________________

3 On July 3, 2019, Appellant filed a counseled notice of appeal. On August 15, 

2019, the PCRA court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied 

timely on September 5, 2019. On December 12, 2019, the trial court issued 

an opinion pursuant to Pa.R.A.P. 1925(a) that largely relied upon its earlier 

opinion dated April 26, 2019. 
J-S28025-20

- 4 -

procedural requirements necessary to withdraw as PCRA counsel.4 Thus, we 

turn to analyze the merits of the claims raised in the Turner/Finley letter 

filed by counsel..

Appellant claims that trial counsel was ineffective for failing to: (1) 

authenticate text messages and photographs to undermine the testimony of

the victim’s mother, by showing she initially believed Appellant was innocent, 

and; (2) present a hygiene defense.

This Court's standard of review regarding an order dismissing a petition 

under the PCRA is:

whether the determination of the PCRA court is supported by 

evidence of record and is free of legal error. In evaluating a PCRA 

court's decision, our scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the [PCRA hearing] level. 

We may affirm a PCRA court's decision on any grounds if it is 

supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (citations 

omitted). “The PCRA court's credibility determinations, when supported by 

the record, are binding; however, [appellate courts apply] a de novo standard 

of review to the PCRA court's legal conclusions.” Commonwealth v. 

Montalvo, 205 A.3d 274, 286 (Pa. 2019).

To be eligible for relief under the PCRA, the petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

____________________________________________

4 We note that, on May 18, 2020, Appellant filed a pro se response to counsel’s 

Turner/Finley brief. We will briefly address Appellant’s pro se contentions 

later. 
J-S28025-20

- 5 -

resulted from “one or more” of the seven, specifically enumerated 

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily 

enumerated circumstances is the “[i]neffective assistance of counsel which, in 

the circumstances of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken 

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

This Court has previously determined:

The law presumes counsel has rendered effective assistance. The 

burden of demonstrating ineffectiveness rests on [a petitioner]. 

To satisfy this burden, [a petitioner] must plead and prove by a 

preponderance of the evidence that: (1) his underlying claim is of 

arguable merit; (2) the particular course of conduct pursued by 

counsel did not have some reasonable basis designed to effectuate 

his interests; and, (3) but for counsel's ineffectiveness, there is a 

reasonable probability that the outcome of the challenged 

proceeding would have been different. Failure to satisfy any prong 

of the test will result in rejection of the [petitioner's] ineffective 

assistance of counsel claim.

Commonwealth v. McGarry, 172 A.3d 60, 70 (Pa. Super. 2017) (internal 

citations and quotations omitted).

Here, the PCRA court determined, in light of Appellants’ confession to 

police, that Appellant failed to prove prejudice with respect to either of his 

claims alleging ineffective assistance of counsel. The recorded police interview 

was played for the jury. N.T., 9/9/2014, at 141- 142. As such, the PCRA 

court determined that failing to authenticate and present text messages 

between Appellant and the victim’s mother following the incident, in an effort 

to undermine the witness’ credibility, and failing to present a hygiene defense 
J-S28025-20

- 6 -

would not have changed the outcome of the case. We agree. In light of 

Appellant’s admission to police that he committed the crimes at issue, trial 

counsel did not render ineffective assistance of counsel for failing to challenge 

the credibility of the victim’s mother or failing to present a hygiene defense. 

Accordingly, we affirm the PCRA court’s order denying relief.

Additionally, as noted earlier, Appellant filed a pro se response to 

counsel’s Turner/Finley no merit letter. Appellant’s response does not alter 

our determination. In his response, Appellant again raised the two ineffective 

assistance claims addressed above, which we determined lack merit. 

Furthermore, Appellant suggests that his statements to police were coerced, 

thereby rendering the PCRA court’s reliance upon his confession flawed. See 

Pro Se Response, 5/18/2020, at 21 (“Jurors today are aware that the police 

sometimes engage in coercive tactics that lead innocent defendants to 

inculpate themselves. The tactics used in this case were distinctly designed to 

provoke an admission of guilt.”); Id. at 23 (“When viewed against the 

backdrop of how the confession was extracted the confession itself does not 

carry as much weight as the PCRA [c]ourt contends.”). Notwithstanding, 

Appellant’s PCRA petition never included a claim alleging that trial counsel 

was ineffective in failing to raise, or failing to properly litigate, a claim 

asserting that Appellant’s confession to the police was coerced. Moreover, 

Appellant never sought to amend his PCRA petition to include this specific 

claim. “Where the petitioner does not seek leave to amend his petition after 

counsel has filed a Turner/Finley no-merit letter, the PCRA court is under no 
J-S28025-20

- 7 -

obligation to address new issues.” Commonwealth v. Rigg, 84 A.3d 1080, 

1085 (Pa. Super. 2014). In addition, this Court may not review an issue for 

the first time on appeal. See Pa.R.A.P. 302(a). Thus, the confession-related 

claims raised in Appellant’s Turner/Finley response were not properly 

preserved for our review. Finally, a PCRA petitioner must establish that issues 

presented under the PCRA have not been previously litigated or waived. See

42 Pa.C.S.A. § 9543(a)(3). Here, as previously mentioned, trial counsel 

sought the suppression of Appellant’s statements made to police. Thereafter, 

on direct appeal, a prior panel of this Court determined that police did not 

subject Appellant to a custodial interrogation and that his subsequent 

confession was voluntary and not coerced. See Commonwealth v. 

Almanzar, 154 A.3d 862 (Pa. Super. 2016) (unpublished memorandum) at 

*11. Hence, the constitutional validity of Appellant’s confession was 

previously litigated and, therefore, not subject to attack in the context of 

collateral proceedings. 

Moreover, after conducting our own review, we find that there are no 

meritorious claims. As such, we affirm the dismissal of Appellant’s PCRA

petition and grant counsel's application to withdraw. 

Order affirmed. Application to withdraw granted. 
J-S28025-20

- 8 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/31/2020