J-S43008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES LEONARD

Appellant No. 1350 WDA 2016

Appeal from the PCRA Order August 23, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No: CP-02-CR-0002957-2012

BEFORE: STABILE, SOLANO, and FITZGERALD, *JJ. 

MEMORANDUM BY STABILE, J.: FILED OCTOBER 2, 2017

Appellant, James Leonard, appeals pro se from the August 23, 2016 

order of the Court of Common Pleas of Allegheny County (“PCRA court”) 

dismissing Appellant’s petition under the Post-Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

A panel of this court previously summarized the procedural and factual 

history of the matter as follows.

On November 1, 2011, Officers Burgunder, Churilla, and 

Ficorilli of the Pittsburgh Bureau of Police were contacted by a 

confidential informant who notified them that a black male 

known as James Leonard was selling Percocet and heroin from 

his residence at 3454 Ligonier Street in Pittsburgh, Pennsylvania. 

The police officers were familiar with that residence, having 

previously conducted drug-related arrests of two individuals 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
J-S43008-17

- 2 -

departing from that location. The officers conducted surveillance 

of the residence and observed a lot of foot traffic in and out of 

the residence, with various people briefly entering and then 

leaving, in a pattern consistent with street level drug sales. 

Soon thereafter, Appellant left the residence in a silver Dodge 

Stratus. Officers Ficorilli and Burgunder followed Appellant and 

observed him quickly change lanes three times without using a 

turn signal. The police officers activated their lights and sirens 

and stopped Appellant’s vehicle. When Officer Burgunder 

approached the passenger side of the vehicle, he observed a 

clear plastic bag containing a large quantity of white, oval 

shaped pills in the center console, which Appellant informed him 

were Percocet. Appellant stated that he did not have a 

prescription for the drugs, but he took them for pain 

management. Subsequent testing revealed the pills were 

Vicodin and not Percocet. 

Appellant was arrested and the officers secured a search 

warrant for Appellant’s residence in which they retrieved 

marijuana, heroin, over $12,000 in United States currency, a 

semi-automatic weapon, and drug paraphernalia. Appellant was 

charged with [possession with intent to deliver a controlled 

substance, possession of a controlled substance, possession of 

drug paraphernalia, driving while his operating privileges were 

suspended, and failure to use a turn signal]. 

On May 16, 2013, Appellant filed a suppression motion. 

The trial court convened a hearing on August 1, 2013, at the 

conclusion of which the trial court entered an order denying 

Appellant’s suppression motion. Following a stipulated [non-

]jury trial on September 24, 2013, the trial court rendered its 

guilty verdicts. 

On January 31, 2014, the trial court conducted a 

sentencing hearing and sentenced Appellant to five (5) to ten 

(10) years of imprisonment. 

Commonwealth v. Leonard, 342 WDA 2014, unpublished memorandum at 

1-3 (Pa. Super. filed November 14, 2014) (footnote omitted). A panel of 

this Court affirmed Appellant’s judgment of sentence on November 14, 2014, 
J-S43008-17

- 3 -

and our Supreme Court denied Appellant’s allocatur petition on March 27, 

2015. 

Appellant filed a timely pro se PCRA petition on March 29, 2016. On 

April 13, 2016, the PCRA court appointed Scott Coffey, Esquire, as 

Appellant’s PCRA counsel. On June 23, 2016, PCRA counsel filed a 

Turner/Finley1“no merit” letter and an application to withdraw. On July 5,

2016, the PCRA court granted counsel’s application to withdraw and 

provided Appellant with notice, pursuant to PA.R.Crim.P. 907, that it 

intended to dismiss Appellant’s PCRA petition without a hearing. Appellant 

filed a pro se response on July 26, 2016, and the PCRA court dismissed 

Appellant’s PCRA petition on August 23, 2016. 

Appellant, pro se, filed a timely appeal on September 12, 2016. The 

following day the PCRA court directed Appellant to file a concise statement of 

errors complained of on appeal. Appellant complied on October 5, 2016 and 

the PCRA court issued a Pa.R.A.P. 1925(a) opinion on January 19, 2017. 

Appellant raises four issues on appeal, which we quote verbatim.

[I.] After reviewing all relevant pleadings/proceedings 

pertaining to this case, does the PCRA court err in the 

wholesale adoption, and acceptance, of the Turner/Finley 

letter, and in subsequently permitting PCRA counsel to 

withdraw?

____________________________________________

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
J-S43008-17

- 4 -

[II.] After reviewing all relevant pleadings/proceedings 

pertaining to this case, does the PCRA court err by not 

granting Appellant the opportunity to amend the original, 

bare-bones, pro se PCRA petition?

[III.] After review of the facts in the Motion for Change of 

Counsel, the Response to Notice of Intent to 

Dismiss/Motion to file Amended PCRA Petition, and the 

Turner/Finley letter, does the PCRA court err in 

presumably ruling that PCRA counsel was effective?

[IV.] Does the PCRA court err in summarily dismissing 

Appellant’s PCRA petition without an evidentiary hearing, 

and in declaring all arguments and issues meritless and/or 

frivolous?

Appellant’s Brief at 4 (sic). 

Appellant’s first issue is challenging the PCRA court’s independent 

review of the record and dismissal of his PCRA petition. “In PCRA 

proceedings, this Court’s scope of review is limited by the PCRA’s 

parameters. Since most PCRA appeals involve mixed questions of fact and 

law, the standard of review we apply is whether the PCRA court’s findings 

are supported by the record and free of legal error.” Commonwealth v. 

Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citing Commonwealth v. 

Pitts, 981 A.2d 875, 878 (Pa. 2009)). 

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, [544 A.2d at 927], 
J-S43008-17

- 5 -

then must conduct its own independent evaluation of the record 

and agree with counsel that the petition is without merit. 

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012) (citing 

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)). 

Counsel identified seven meritless allegations of ineffective assistance 

of counsel in his Turner/Finley letter upon which Appellant wished to 

proceed. See Turner/Finley Letter, 6/23/16, at 4-9. “It is well established 

that counsel is presumed effective, and a [PCRA] petitioner bears the burden 

of proving ineffectiveness.” Commonwealth v. Reyes-Rodriguez, 111 

A.3d 775, 779-80 (Pa. Super. 2015) (en banc) (quoting Commonwealth v. 

Ligons, 971 A.2d 1125, 1137 (Pa. 2009) (alteration in original) (additional 

citations omitted)). “To prevail on an [ineffective assistance of counsel] 

claim, a PCRA petitioner must plead and prove by a preponderance of the 

evidence that (1) the underlying claim has arguable merit; (2) counsel had 

no reasonable basis for acting or failing to act; and (3) the petitioner 

suffered resulting prejudice. Id. at 780 (citations omitted). If the petitioner 

fails to meet any of the Pierce2 prongs, the claim fails. Id. 

Counsel’s first meritless issue is whether trial counsel failed to raise a 

claim regarding the time the search warrant was signed and served. 

Appellant cites the police criminal complaint, which states that the search 

warrant was signed at 9:40 p.m. on November 1, 2011, and executed at 

____________________________________________

2 Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). 
J-S43008-17

- 6 -

9:55 p.m. the same date; however, on the face of the warrant it appears to 

have been signed at 10:00 p.m. “Pennsylvania Courts have long held that a 

technical defect in a warrant, such as the mis-dating at issue here, does not 

render a warrant invalid in the absence of a showing of prejudice.” 

Commonwealth v. Benson, 10 A.3d 1268, 1274 (Pa. Super. 2010) (citing 

Commonwealth v. Hamlin, 469 A.2d 137, 140 (Pa. 1983)). In the matter 

sub judice, the time period in question was twenty minutes. Thus, Appellant 

would be unable to establish prejudice and the claim is meritless.

Counsel identifies a second meritless claim as to the untested nature 

of the confidential informant. Appellant’s brief is bereft of discussion on this 

issue, as he focuses solely on the tense of the word “currently” and the fact 

that the challenge to the informant had previously been litigated. While 

Appellant is correct that PCRA counsel failed to acknowledge this issue was 

previously litigated, this on its own does not establish a claim upon which 

relief can be granted. Moreover, it renders the underlying claim waived. 

See 42 Pa.C.S.A. § 9544. Relatedly, Appellant asserts that trial counsel was 

ineffective for failing to challenge the timing of when the confidential 

informant obtained the information that led to the search warrant. PCRA 

counsel noted this as issue four and concluded that this issue lacked merit 

because it did not render the warrant defective for lack of probable cause. 

See Turner/Finley, Letter, 6/23/16, at 8. 

[A] determination of probable cause based upon information 

received from a confidential informant depends upon the 

informant’s reliability and basis of knowledge viewed in a 
J-S43008-17

- 7 -

common sense, non-technical manner. Commonwealth v. 

Luv, 557 Pa. 570, 735 A.2d 87, 90 (1999). Thus, an informant’s 

tip may constitute probable cause where police independently 

corroborate the tip, or where the informant has provided 

accurate information of criminal activity in the past, or where 

the informant himself participated in the activity. Id.

Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011) (emphasis in 

original). In the matter sub judice, the police corroborated the information 

via surveillance that occurred on the same date they received the 

information from the confidential informant and obtained the warrant. Thus, 

Appellant’s claims is meritless and would not satisfy the first Pierce prong. 

Counsel’s third and seventh identified claims involve an alleged 

inconsistency with the criminal complaint and the testimony at the 

suppression hearing regarding a bag of pills in the center console. Appellant 

asserts that the pills were not in plain view and requests an expert to 

establish that it was impossible to see them. During the suppression hearing 

the following exchange occurred during cross-examination of Officer Brian 

Burgunder.

Q. You say you found a plastic bag containing oval pills in the 

console of Mr. Leonard’s vehicle.

A. Yes.

Q. Did this console have a lid to it?

A. It did. What I refer to as the entire center console. The gear 

shifter was in the middle.

Q. Could someone have put the lid on top of the console, thus 

concealing anything in it?

A. Not where the pills were.
J-S43008-17

- 8 -

Q. They were in a clear plastic bag; right?

A. Yes.

N.T. Suppression Hearing, C, at 20. Upon review of the testimony, this 

claim is meritless as the lid Appellant was describing did not obscure the 

visibility of the pills. Thus, the claim lacks merit and fails to meet the first 

Pierce prong. Appellant’s claim fails. 

The final meritless claims of ineffective assistance of counsel identified 

by PCRA counsel involves failing to call as witnesses a second police officer 

who was present at the traffic stop and James White, an individual who was 

present at Appellant’s house during the period the police were conducting 

surveillance of his residence. 

When raising a claim of ineffectiveness for the failure to 

call a potential witness, a petitioner satisfies the performance 

and prejudice requirements of the Strickland[3]test by 

establishing that: (1) the witness existed; (2) the witness was 

available to testify for the defense; (3) counsel knew of, or 

should have known of, the existence of the witness; (4) the 

witness was willing to testify for the defense; and (5) the 

absence of the testimony of the witness was so prejudicial as to 

have denied the defendant a fair trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations 

omitted). Appellant’s brief is bereft of discussion of the second police officer, 

thus this claim fails. While Appellant’s brief discusses James White, his 

contention is that PCRA counsel failed to contact him regarding James White, 

____________________________________________

3 Strickland v. Washington, 468 U.S. 668 (1984).
J-S43008-17

- 9 -

not that trial counsel was ineffective for failing to call James White. There is 

nothing to establish that the absence of the testimony of James White would 

have been so prejudicial as to deny Appellant a fair trial. During the 

suppression hearing Officer Churilla testified regarding a number of people 

going in and out of the residence, not just the one person that James White 

would have testified to. See N.T. Suppression Hearing, 8/1/13, at 25. 

Thus, while the testimony would have contradicted the testimony of Officer 

Churilla, it would not have caused substantial prejudice as there was ample 

evidence to establish probable cause for the search warrant. See generally

N.T. Suppression Hearing, 8/1/13. Thus, Appellant’s claim fails.

Next, Appellant alleges the PCRA court erred when it denied his motion 

to amend his PCRA petition. The PCRA court “may grant leave to amend or 

withdraw a petition for post-conviction collateral relief at any time. 

Amendment shall be freely allowed to achieve substantial justice.” 

Pa.R.Crim.P. 905(A). While Rule 905 provides for liberal amendment, when 

such amendment is frivolous or meritless, such amendment would be 

unnecessary. See Pa.R.Crim.P. 907(1). As discussed above, permitting 

such amendment was unnecessary as the PCRA court conducted an 

independent review of the record4and there were no issues of merit; thus, 

the PCRA court properly denied his motion to amend. 

____________________________________________

4 As noted above, this Court previously reviewed this independent review 

and determined that the claims were indeed meritless.
J-S43008-17

- 10 -

Appellant’s third claim is that PCRA counsel was ineffective for filing a 

Turner/Finley letter rather than an amended PCRA petition. As discussed 

above, Appellant’s underlying claims lack merit; thus, his ineffectiveness 

claim against PCRA counsel is frivolous. Additionally, counsel’s 

Turner/Finley letter satisfies the requirements of Turner and Finley, as 

explained above. Thus, Appellant’s claim fails. 

Appellant’s final argument is that the PCRA court erred when it denied 

his petition without a hearing. 

Pursuant to [Pa.R.Crim.P. 907], a PCRA court has discretion to 

dismiss a PCRA petition without a hearing if the court is satisfied 

that there are no genuine issues concerning any material fact; 

that the defendant is not entitled to post-conviction collateral 

relief; and that no legitimate purpose would be served by further 

proceedings.

Brown, 161 A.3d at 964 (quoting Commonwealth v. Burton, 158 A.3d 

618, 622 (Pa. 2017)). As discussed above, Appellant’s claims lacked merit; 

thus, there was no legitimate purpose to be served by the PCRA court 

holding a hearing. Appellant’s claim fails.

Order affirmed. 
J-S43008-17

- 11 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/2/2017