J-S18028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH FAISON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2379 EDA 2022

Appeal from the PCRA Order Entered August 12, 2022

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0001675-2016

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 21, 2023

Appellant, Kenneth Faison, appeals from the August 12, 2022 order that 

denied his petition for collateral relief filed under the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541-46. In addition, Appellant’s appointed counsel, 

Damien D. Brewster, Esq., has filed a Petition to Withdraw as Counsel and an 

accompanying Turner/Finley “no merit” Brief.

1

 After review, we grant 

counsel’s application and affirm the PCRA court’s Order denying Appellant’s 

request for discovery and his ineffective assistance of counsel claim.

A.

On December 9, 2015, at around 8:30 PM, Appellant walked into a Circle 

K convenience store, pulled out a gun, and demanded and took money from 

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* Former Justice specially assigned to the Superior Court.

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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the cashier. Store surveillance cameras recorded the robbery which clearly

captured Appellant’s face and gun, and his hand on the counter. Fingerprints 

obtained from the counter matched Appellant’s on the automated fingerprint 

identification system (“AFIS”). Police officers recovered clothing in Appellant’s 

car that matched that worn by Appellant during the robbery as seen on the 

surveillance tapes. The Commonwealth charged Appellant with Robbery, 

Possession of a Firearm with Intent to Employ It Criminally, and TheftUnlawful Taking.

On June 15, 2016, the court appointed Nicholas Reifsnyder, Esq., to 

represent Appellant. On September 16, 2016, Mr. Reifsnyder informed the 

trial court that discovery was complete. The court scheduled trial to begin 

December 12, 2016.

At a pre-trial conference on December 7, 2016, Appellant informed the 

court that he wanted to represent himself. The trial court conducted a Grazier

colloquy2 and found that Appellant’s waiver of counsel was knowing, 

intelligent, and voluntary. The court appointed Mr. Reifsnyder as standby 

counsel. Appellant, now representing himself, then requested a continuance

because he did not have the discovery materials. The court denied the 

continuance request but asked the prosecutor to provide Appellant with the 

documents that it had previously provided to Mr. Reifsnyder. The 

Commonwealth did so and gave Appellant “two additional items. . . in an 

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2 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
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abundance of caution:” the Commonwealth’s fingerprint expert’s report 

(which the Commonwealth believed it had already provided to Appellant’s 

counsel), as well as the expert’s curriculum vitae and slides that the expert 

planned to use during his testimony. N.T. Pretrial, 12/7/16, at 14. The 

prosecutor also showed Appellant the surveillance video at the pretrial 

conference. Appellant did not request that the Commonwealth provide the

actual, or copies of, the latent fingerprints upon which the expert based his 

report.

On December 12, 2016, the first day of trial, Appellant requested 

another continuance, which the court denied. The court again conducted a 

colloquy with Appellant regarding his decision to proceed pro se and again

found Appellant’s waiver of counsel to be voluntary, knowing, and intelligent.

On December 13, 2016, prior to the Commonwealth presenting its case

to the jury, Appellant asked Mr. Reifsnyder to inform the court that the 

Commonwealth had not provided the actual or scanned copies of the latent 

fingerprints in the discovery materials. Mr. Reifsnyder did so and asserted 

that the Commonwealth had been obligated to include the latent fingerprints 

in the discovery documents. The court disagreed, analogizing the actual 

fingerprints to a gun which would never be produced as part of discovery 

materials.

3 The court further noted that while copies or pictures of latent 

prints are sometimes used at trial, in most cases it is the fingerprint expert’s 

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3 N.T. Trial, 12/13/16, at 206.
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report that is, and was in this case, produced in discovery.4 Mr. Reifsnyder

insisted that the Commonwealth’s failure to produce the latent prints or copies 

of the prints as a part of discovery should “be held against the 

Commonwealth,” clarifying for the court that he believed the Commonwealth

“should not be allowed to display or do anything with the fingerprint evidence.” 

N.T. Trial, 12/13/16, at 211. 

The court denied the motion and, after counsel again insisted that a 

copy of the fingerprint not be published to the jury because it had not been 

produced in discovery, the Commonwealth indicated it would only show a copy 

of the fingerprint to one of the investigators during his testimony, but not to 

the jury. The court directed the Commonwealth to provide a hard copy of the 

fingerprint to Mr. Reifsnyder and Appellant to view during lunch.

5

The Commonwealth presented its case, which included testimony from

numerous police investigators, a victim, and the Commonwealth’s fingerprint 

expert, Trooper Jeffrey Custer.

6

In his cross-examination of Trooper Custer, 

Appellant focused solely on whether Trooper Custer had brought a copy of the 

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4 N.T. Trial, 12/13/16, at 205-210. 

5 Id. at 212. 

6 When the Commonwealth showed copies of the latent fingerprints obtained 

from the Circle K counter, it marked them for identification as C-12 and C-13. 

However, these exhibits were never admitted into evidence or published to 

the jury during anyone's testimony.
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latent fingerprints to trial.

7

 He did not address the fingerprint report upon 

which Trooper Custer based his testimony or otherwise challenge its validity.

On December 14, 2016, the jury found Appellant guilty of the above 

offenses.8 On May 25, 2018, the court sentenced Appellant to an aggregate 

term of 25 to 50 years’ incarceration.

9,10 This Court affirmed the judgment 

of sentence and our Supreme Court denied allocatur on June 24, 2020.11 His 

judgment of sentence, thus, became final on September 22, 2020.

B.

Appellant timely filed a pro se PCRA petition followed by an amended 

pro se PCRA petition. On April 26, 2021, the trial court appointed Damien D. 

Brewster, Esq., as PCRA counsel. Mr. Brewster filed an Amended PCRA 

petition alleging that Mr. Reifsnyder provided ineffective assistance as pretrial 

counsel by (1) failing to request or compel the Commonwealth to produce the 

latent and reference fingerprints obtained from the Circle K counter; (2) failing 

to investigate a misidentification defense; (3) informing the court that 

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7 See, e.g., id. at 355-359.

8 The court found Appellant guilty of Person Not to Possess Firearms.

9 The delay between the verdict and the imposition of judgment of sentence 

resulted from Appellant filing a premature appeal and, after this Court 

quashed that appeal, the court continuing sentencing for sentencing 

memoranda and a presentence investigation and report.

10 Mr. Riefsnyder filed a motion to withdraw his representation on July 3, 2018.

11 Commonwealth v. Faison, No. 1918 EDA 2018 (Pa. Super. Nov. 19, 2019) 

(unpublished memorandum), appeal denied, 236 A.3d 1049 (Pa. 2020). 
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discovery was complete when Mr. Reifsnyder had not made the fingerprint 

request; and (4) incorrectly assuring Appellant that the court would either 

exclude reference fingerprints or grant a continuance, causing Appellant to 

rely on this fact in his opening statement.

12 Counsel also sought an 

evidentiary hearing and requested leave to obtain the latent fingerprints and 

funds to obtain his own fingerprint expert.13

The PCRA court issued its Notice of Intent to Dismiss PCRA Petition 

Without a Hearing pursuant to Pa.R.Crim.P. 907(1). Appellant requested and 

received an extension of time to file a response, however, Appellant never 

responded. On August 12, 2022, the PCRA court issued its Final Order denying 

Appellant’s PCRA petition. 

Appellant timely appealed. He filed a court-ordered Pa.R.A.P. 1925(b) 

statement, and the trial court filed a responsive Rule 1925(a) Opinion. 

Counsel then filed a Turner/Finley Brief in this Court addressing Appellant’s 

five issues containing multiple sub-issues which are, in essence, that: (1) pretrial counsel was ineffective for not requesting the actual fingerprints after 

receiving discovery and for not investigating a mis-identification defense; and 

(2) the PCRA court erred in denying his Pa.R.Crim.P. 902(E) request for the 

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12 Amended PCRA Petition, filed 8/9/21, at ¶¶15-18, 32-34, 37, 43-44.

13 Id. at ¶¶55, 63-65. Counsel’s Amended Petition raised other claims, but 

those listed here are the only claims preserved in Appellant’s Pa.R.A.P.

1925(b) statement.
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latent fingerprints. See Turner/Finley Br. at 2-3. Mr. Brewster also filed a 

Petition to Withdraw as Counsel.

Appellant filed a pro se response to counsel’s Turner/Finley brief in 

which Appellant reiterated his request for the latent fingerprints pursuant to 

Pa.R.Crim.P. 902(E). In addition, Appellant asserted that PCRA counsel 

provided ineffective assistance by failing to argue that the trial court had

violated Appellant’s constitutional right to confront the Commonwealth’s 

expert when it denied his discovery request for fingerprints. Pro Se Response 

to Turner/ Finley Brief, filed 4/17/23, at 3. Appellant implies that if PCRA 

counsel had made this constitutional argument, the PCRA court would have 

granted his request for discovery of the fingerprints under the PCRA to enable 

him to “properly develop and present his claim in the PCRA petition.” Id. at 

4.

C.

We first address Appellant’s claim that PCRA counsel provided

ineffective assistance.

14 See Pro Se Response to Turner/Finley Brief, filed 

4/17/23, at 1. When an appellant raises a claim of PCRA counsel’s

ineffectiveness for the first time on appeal, this Court has “the ability to grant 

or deny relief on straightforward claims, as well as the power to remand to 

the PCRA court for the development of the record.” Commonwealth v. 

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14 A PCRA petitioner may, with “new counsel or acting pro se, raise claims of

PCRA counsel's ineffectiveness at the first opportunity to do so, even if on

appeal.” Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021).
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Bradley, 261 A.3d 381, 403 (Pa. 2021). Here, Appellant’s claim of PCRA

counsel’s alleged ineffectiveness is straightforward so we need not remand.

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [the] appellant.” Id. To 

satisfy this burden, the appellant must plead and prove by a preponderance 

of the evidence that: (1) the underlying claim has arguable merit; (2) no 

reasonable basis existed for counsel’s actions or failure to act; and (3) there 

is a reasonable probability that the outcome of the challenged proceeding 

would have been different absent counsel’s error. Id. Failure to satisfy any 

prong of the test will result in rejection of the appellant’s claim. Id. 

“Arguable merit exists when the factual statements are accurate and 

could establish cause for relief.” Commonwealth v. Urwin, 219 A.3d 167, 

172–173 (Pa. Super. 2019). “Whether the facts rise to the level of arguable 

merit is a legal determination.” Id. (citation omitted).

Here, Appellant is asserting PCRA counsel was ineffective for, in 

essence, failing to proffer an argument to support his PCRA request for 

discovery. 

A PCRA petitioner’s request for discovery is governed by Pa.R.Crim.P. 

902(E)(1), which provides: “no discovery shall be permitted at any stage of 

the proceedings, except upon leave of court after a showing of exceptional 

circumstances.” Pa.R.Crim.P. 902(E)(1). “Mere speculation that exculpatory 
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evidence might exist does not constitute an exceptional circumstance 

warranting discovery.” Commonwealth v. Frey, 41 A.3d 605, 612 (Pa. 

Super. 2012). Neither the PCRA nor the Pennsylvania Rules of Criminal 

Procedure define “exceptional circumstances,” but this Court has held that it 

is within the PCRA court’s discretion to determine “whether a case is 

exceptional and warrants discovery.” Commonwealth v. Watley, 153 A.3d 

1034, 1048 (Pa. Super. 2016) (citation omitted). This Court “will not disturb 

the PCRA court’s determination regarding the existence of exceptional 

circumstances unless the court abused its discretion.” Id. (citation omitted).

In his challenge to PCRA counsel’s stewardship, Appellant has failed to 

address the case law defining exceptional circumstances or what PCRA counsel 

could have argued to prove exceptional circumstances justifying the grant of 

discovery. Thus, he has failed to demonstrate the arguable merit of his claim 

of PCRA counsel’s ineffectiveness. Moreover, he has presented no argument 

with respect to the third prong of the ineffectiveness test, i.e., that but for 

PCRA counsel’s omission, the PCRA court would have granted the discovery 

request. Appellant has, thus, failed to establish that PCRA counsel provided 

ineffective assistance.

D.

 Relatedly, Appellant also asserted in his counseled PCRA petition that the 

PCRA court erred in denying his request for discovery of the latent fingerprints. 

For reasons similar to those set forth above, we conclude the PCRA court 
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properly exercised its discretion in denying Appellant’s request for the latent 

fingerprints. Appellant has neither presented any argument to this Court that 

the fingerprints are exculpatory nor otherwise supported his request with an 

explanation of extraordinary circumstances. Accordingly, this claim warrants 

no relief.

E.

Before we address the merits of the remaining issues presented in the 

Turner/Finley brief, we review counsel’s request to withdraw. Pursuant to 

Turner/Finley, diligent review of the record by competent counsel is 

necessary before the Court shall permit withdrawal on collateral appeal. 

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016). Counsel 

is then required to submit a “no merit” letter (1) detailing the nature and 

extent of his or her review; (2) listing each issue the petitioner wishes to have 

raised on review; and (3) explaining why the petitioner’s issues are meritless.

Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019). 

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.” 

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

Our review of the record discloses that Attorney Brewster has complied 

with each of the above requirements. Counsel has presented a comprehensive 

review of the issues Appellant seeks to raise on appeal and addressed the 
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PCRA court’s analysis before concluding that the PCRA court’s decision is free 

of legal error and supported by the record. Turner/Finley Br. at 5-28. In 

addition, Attorney Brewster sent Appellant copies of the Turner/Finley Brief 

and his petition to withdraw and advised Appellant of his rights in lieu of 

representation. Id., Br., App’x C & D. Having determined that counsel has 

complied with the Turner/Finley requirements, we grant counsel’s request 

to withdraw. We now conduct an independent review of the record to 

determine the merits of the claims raised in the Turner/Finley Brief. 

Walters, 135 A.3d at 591. Based on our review, we agree that Appellant’s 

issues are without merit.

F.

We review an order denying a petition for collateral relief to determine 

whether the PCRA court’s decision is supported by the evidence of record and 

free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. 

Super. 2016). “This Court grants great deference to the findings of the PCRA 

court if the record contains any support for those findings.” Commonwealth 

v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010). To prevail on a 

petition for PCRA relief, a petitioner must plead and prove, by a preponderance 

of the evidence, that his conviction resulted from one or more of the 

circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances 

include ineffectiveness of counsel, which “so undermined the truth-
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determining process that no reliable adjudication of guilt or innocence could 

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

There is no right to a PCRA hearing; a hearing is unnecessary where the 

PCRA court can determine from the record that there are no genuine issues of 

material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 

2008). The decision to hold a hearing “will not be overturned absent an abuse 

of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

After careful review, we find that the PCRA court did not abuse its 

discretion in denying Appellant relief in regard to the two categories of error 

he presents to this Court: (1) that pretrial counsel was ineffective because he 

failed to request the latent fingerprints, and (2) that counsel failed to 

investigate a misidentification defense.

Counsel’s failure to request latent fingerprints

With respect to Appellant’s claim that pretrial counsel provided 

ineffective assistance by failing to request the latent fingerprints obtained 

from the Circle K counter, the PCRA court stated in its Rule 1925(a) opinion

that Appellant could not satisfy the first and third prongs of the test for 

ineffectiveness. PCRA Ct. Op. at 9. The court found that the underlying claim 

lacked arguable merit because Appellant failed to provide any factual support 

to indicate the fingerprints would have been exculpatory, and there was no 

prejudice because Appellant “cannot establish that the outcome of the 
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proceedings would have been different but for [counsel’s] action or inaction.” 

Id. at 8-9.

In the Turner/Finley brief, counsel addresses this claim by noting that 

Appellant could not “advance any additional factual support” for his claim and 

opines that the lack of additional evidence “compels a similar result” as that

found by this Court in addressing Appellant’s Brady15 claim on his direct 

appeal—that Appellant could not show prejudice.

16 Id. Counsel also opined 

that Appellant could not meet the second prong, as pretrial counsel had a 

reasonable basis for his decision not to request fingerprints.

17 Id. at 9-10.

Based on our review, we conclude the PCRA court did not abuse its 

discretion in denying relief. As that court noted, this claim is “based on pure 

speculation as to what might have been uncovered” and provides “no factual 

support.” PCRA Ct. Op. at 8. Moreover, in light of the other evidence 

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15 Brady v. Maryland, 373 U.S. 83 (1963).

16 In his direct appeal, Appellant raised a Brady claim regarding the 

Commonwealth’s failure to provide the reference fingerprints in discovery. 

This Court found that Appellant could not demonstrate that he suffered 

prejudice from the omission because he failed to “establish that it was more 

likely than not that the result of the proceeding would have been different had 

he received the fingerprints,” provided no support for the assertion the prints

were exculpatory, and only “suggest[ed]” the fingerprints might have been 

used to impeach the expert.” Commonwealth v. Faison, No. 1918 EDA 

2018 (Pa. Super., Nov. 19, 2019). 

17 In pretrial counsel’s experience, the Commonwealth would not provide 

latent fingerprints unless requested. The Commonwealth would then either 

not use them at trial or be precluded from using them.
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supporting Appellant’s conviction, i.e., the video recordings clearing showing 

his face, video recording clearly showing Appellant’s hand placed on the 

counter, the clothes in his car matching those he was wearing during the 

robberies, and the fingerprint expert’s testimony and report incriminating 

Appellant, Appellant cannot show that the outcome of trial would have been 

different if counsel had requested the latent fingerprints before trial. This 

ineffectiveness claim, thus, warrants no relief.

Misidentification Investigation

In his second ineffectiveness claim, Appellant argues that counsel 

provided ineffective assistance by failing to pursue a misidentification defense. 

The PCRA court concluded that pre-trial counsel had a reasonable basis for 

not investigating a misidentification defense because there was “clear, 

overwhelming” evidence that it was Appellant who committed the robbery.

PCRA Ct. Op. at 10.

Based on our review, we find the PCRA court did not abuse its discretion 

in concluding Appellant’s ineffective assistance claim warranted no relief.

There was overwhelming evidence of Appellant’s guilt, specifically the video 

that showed his face. PCRA Ct. Op. at 10-11. Because of this strong evidence,

Appellant cannot establish that but for pre-trial counsel’s failure to present a 

misidentification defense, the outcome of the trial would have been different.

Moreover, Appellant chose to represent himself beginning with the 

pretrial conference and, thus, could have investigated and presented a 
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misidentification defense at trial. “[A] defendant who chooses to represent 

himself cannot obtain relief by raising a claim of ineffectiveness of counsel or 

standby counsel.” Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012). 

“When a defendant elects to proceed at trial pro se, the defendant—and not 

standby counsel—is in fact counsel of record and is responsible for trying the 

case.” Id. “Appellant cannot shift the responsibility for his own performance 

to stand-by counsel, ‘who occupied only an advisory role.’” Commonwealth 

v. Sims, 549 A.2d 1280, 1282 (Pa. Super. 1988). Appellant’s ineffectiveness 

claim fails to garner relief.

G.

In conclusion, we find that the PCRA court properly exercised its 

discretion in denying relief without a hearing. The issues addressed in the 

Turner/Finley letter have no merit. In addition, our independent review of 

the record reveals there are no non-frivolous issues to be raised on appeal.

Accordingly, we grant counsel’s Petition to Withdraw as Counsel and affirm 

the PCRA court’s Order dismissing Appellant’s PCRA petition. 

Petition to Withdraw as Counsel granted. Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/21/2023