J-S26013-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BEAU WILLIAM CHERMER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1159 WDA 2019

Appeal from the PCRA Order Entered July 1, 2019

In the Court of Common Pleas of Beaver County Criminal Division at 

No(s): CP-04-CR-0001125-2012

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.: FILED JULY 17, 2020

Beau William Chermer (Appellant) appeals pro se from the order 

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 

42 Pa.C.S.A. §§ 9541-9546. For the reasons that follow, we affirm.

The PCRA court summarized the facts giving rise to Appellant’s 

convictions as follows:

The underlying case involved an April 29, 2012 incident where 

[Appellant] and a co-defendant broke into the [v]ictim’s home, 

brutally assaulted him, robbed him, and then left him seriously 

injured in his home. Twenty-one (21) days after the assault on 

the [v]ictim, he died from the injuries inflicted by [Appellant].

* * *

At trial, the [c]ourt heard testimony from multiple medical 

professionals and lay witnesses regarding the cause of the 

[v]ictim’s death. The testimony provided that after being tortured 

and beaten by [Appellant] and his [c]o-[d]efendant during a home 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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invasion, the eighty-one (81) year old [v]ictim suffered a 

traumatic brain injury. The [v]ictim was found the day after the 

attack and was rushed to the hospital. Testimony provided that 

the victim suffered from a pre-existing heart condition, requiring 

him to take Coumadin, a blood thinner, to prevent blood clots. 

Due to the severe brain injury, the treating physicians suspended 

the [v]ictim’s normal medication and briefly took him off the 

Coumadin to help treat the brain trauma. Testimony provided by 

Doctor Christina Troevs, the Medical Director of the Trauma 

Intensive Care Unit of Allegheny General Hospital, explained that 

it was customary to stop prescribing Coumadin for thirty (30) days 

following severe brain injuries in patients. The [v]ictim ultimately 

died twenty-one (21) days after the brutal attack.

The Commonwealth’s Forensic Pathologist, Doctor James 

Smith, determined that the cause of death of the [v]ictim was an 

acute myocardial infarction, as a direct result of the trauma that 

had occurred to the [v]ictim’s brain twenty-one (21) days 

previously. While all parties agreed that the [v]ictim’s preexisting heart condition played a role in his death, the experts 

disagreed that the brain trauma was the underlying cause of the

[v]ictim’s death. The Commonwealth witnesses and medical 

experts all provided testimony that the brain injury is what placed 

the victim in the hospital and ultimately caused his death. Dr. 

Smith explicitly stated that the brain trauma was the direct cause 

of the [v]ictim’s death. There was no dispute that the Appellant 

caused the [v]ictim’s extensive brain trauma.

PCRA Court Opinion, 9/13/19, at 6, 10-11 (footnote and record citations

omitted).

As a result of his actions on April 29, 2012, Appellant was charged at 

CP-04-CR-0001130-2012 (1130-2012) with 16 crimes, including robbery, 

aggravated assault, burglary, unlawful restraint, theft by unlawful taking, 

simple assault, false imprisonment, and criminal conspiracy. As a result of 

the victim’s death three weeks later, Appellant was charged at CP-04-CR0001125-2012 (1125-2012) with second-degree murder.
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 Trial commenced on January 28, 2014. However, on January 30, 

2014, the trial court, at Appellant’s request, declared a mistrial. On February 

10, 2014 Appellant filed a motion to bar re-trial and dismiss on grounds of 

double jeopardy. Appellant claimed that the prosecutor intentionally caused 

the mistrial. Thereafter, the trial court conducted an evidentiary hearing, 

after which it denied Appellant’s motion based on its determination that there 

had been no prosecutorial misconduct.

On August 17, 2015, at Docket Number 1130-2012, Appellant pled 

guilty to all 16 charges. Following waiver of his right to a jury trial, Appellant 

proceeded to a bench trial on the charge of second-degree murder at Docket 

Number 1125-2012; the trial court found Appellant guilty on August 26, 2015. 

On October 19, 2015, the trial court sentenced Appellant to life imprisonment 

without the possibility of parole at Docket Number 1125-2012, and a 

consecutive aggregate term of 19 to 50 years of incarceration at Docket 

Number 1130-2012. Appellant filed a timely direct appeal.

On March 14, 2017, this Court affirmed Appellant’s convictions at both 

Docket Numbers 1125-2012 and 1130-2012. See Commonwealth v. 

Chermer, 128 WDA 2016 at 20 (Pa. Super. Mar. 14, 2017) (unpublished 

memorandum). Our Supreme Court denied Appellant’s petition for allowance 

of appeal.

Appellant filed a pro se PCRA petition on August 16, 2017 at both Docket 

Numbers 1125-2012 and 1130-2012. Appellant raised, inter alia, numerous 
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allegations of Trial Counsel ineffectiveness. The court appointed counsel and 

on December 10, 2018, PCRA Counsel filed a petition to withdraw and nomerit 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). On January 15, 2019, Appellant filed a pro se response to PCRA 

Counsel’s no-merit letter.

On May 7, 2019, the PCRA court granted PCRA Counsel permission to 

withdraw and issued notice of intent to dismiss Appellant’s petition without a 

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. On May 

28, 2019, Appellant filed a pro se response. On July 1, 2019, the PCRA court 

entered orders at both Docket Numbers 1125-2012 and 1130-2012 denying

the petition. On July 15, 2019, Appellant filed a timely pro se notice of appeal 

from the PCRA court’s order at Docket Number 1125-2012 only.

Before we consider the issues Appellant raises on appeal, we address 

whether we have jurisdiction. See Commonwealth v. Borrero, 692 A.2d 

158, 159 (Pa. Super. 1997) (stating that appellate court may sua sponte

examine its jurisdiction). Appellant filed one notice of appeal from the July 1, 

2019 order denying his PCRA petition at two criminal docket numbers. Such 

practice appears to be prohibited by our Supreme Court’s decision in 

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). The Supreme Court 

held that “prospectively, where a single order resolves issues arising on more 

than one docket, separate notices of appeal must be filed for each case.” 
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Id. at 971 (emphasis added). The Supreme Court observed that the Official 

Note to Rule 341 of the Pennsylvania Rules of Appellate Procedure “provides 

a bright-line mandatory instruction to practitioners to file separate notices of 

appeal,” and accordingly, determined that “the failure to do so requires 

the appellate court to quash the appeal.” Id. at 976-77 (emphasis 

added).

Arguably, we could quash Appellant’s appeal because he filed one notice 

of appeal from the order denying his petition at two docket numbers. See id. 

In Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019), however, 

this Court declined to apply Walker where the trial court improperly “advised”

the defendant that filing a single notice of appeal from an order disposing of 

a PCRA petition at two separate docket numbers was sufficient. Id. at 160.

We explained that such misstatements “amount to a breakdown in court 

operations such that we may overlook the defective nature of [a]ppellant’s 

timely notice of appeal rather than quash pursuant to Walker.” Id. In this 

case, like Stansbury, the PCRA court dismissed Appellant’s petition and only 

advised him to file a single notice of appeal. See Trial Court Order, 7/1/19. 

Therefore, we decline to quash, and proceed to review Appellant’s claims. See 

Stansbury, 219 A.3d at 160.

Appellant raises the 12 issues for review:

I. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of Trial Counsel ineffectiveness for failing to 

object to prosecutorial misconduct in the form of the 
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Commonwealth repeatedly referring to Appellant as a “Predator,” 

and the victim as “Prey”?

II. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of Trial Counsel ineffectiveness for failing to 

object to prosecutorial misconduct during the Commonwealth’s 

summation by repeatedly intimating to the fact finder of how 

“mad” he was about the particular circumstances of the case?

III. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of Trial Counsel ineffectiveness for failure to 

object to prosecutorial misconduct in the form of improper 

questioning/cross-examination of the victim’s daughter, Denise 

Heuring, which was irrelevant and wholly prejudicial?

IV. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of Trial Counsel ineffectiveness in foregoing 

cross-examination and impeachment of a key prosecution 

witness, Slade Unis?

V. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of Trial Counsel ineffectiveness for failure to 

consult with, retain and call a cardiologist to testify at Appellant’s 

trial as Trial Counsel was informed by Appellant’s family they 

would fund a cardiologist after the trial court denied funds to hire 

a cardiologist during Appellant’s first trial?

VI. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of Trial Counsel ineffectiveness for failing to 

subject the Commonwealth’s case to meaningful adversarial 

testing by failing to object to the lack of notice and subject-matter 

jurisdiction over Appellant and the requisite element malice 

aforethought and Pennsylvania’s unconstitutional criminal 

homicide; murder statutes?

VII. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of Trial Counsel’s conflict and ineffectiveness 

causing him to withdraw during Appellant’s sentencing hearing 
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which prompted the trial court to appoint Attorney DiMartini, who 

represented Appellant during his first trial, to file post-sentence 

motion and direct appeal?

VIII. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of the cumulative effect of Trial Counsel’s above 

ineffectiveness issues rising to the level of prejudice?

[IX.] Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of the Commonwealth further engaging in 

prosecutorial misconduct by withholding material impeachment 

evidence and knowingly presenting false and misleading 

testimony pertaining to leniency given to Slade Unis in exchange 

for his cooperation with the investigation and then testifying 

against Appellant at his trial?

X. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel failed to raise a 

meritorious claim of the Double Jeopardy Clause pursuant to 

Article I § 10 of Pennsylvania’s Constitution precluding a [second]

trial given Appellant’s first trial ended in a mistrial due to 

misconduct, and the above described prosecutorial misconduct 

designed to deny Appellant’s constitutional rights to a fair trial and 

due process?

XI. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel [] rendered 

ineffective assistance of counsel?

XII. Did the PCRA court err in summarily dismissing Appellant’s 

petition without a hearing because PCRA Counsel[’s] 

Turner/Finley “no merit” letter failed to satisfy the technical 

prerequisites of Turner/Finley[?] Did the PCRA court also err in

failing to conduct its own independent analysis in its decision to 

summarily dismiss Appellant’s petition without a hearing rather 

than largely adopting PCRA Counsel’s flawed Turner/Finley “no 

merit” letter in violation of Appellant’s rule based rights to

effective assistance of PCRA counsel; meaningful PCRA process, 

and Appellant’s state-created liberty interest in demonstrating his 

innocence.

Appellant’s Brief at 3-6.
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In considering Appellant’s issues, we review the denial of PCRA relief by 

“examining whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal error.” 

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). “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 party who prevailed in the PCRA 

court proceeding.” Id.

Each of Appellant’s issues raise claims of ineffective assistance of 

counsel. With respect to such claims, our Supreme Court stated:

It is well-settled that counsel is presumed to have been 

effective and that the petitioner bears the burden of proving 

counsel’s alleged ineffectiveness. Commonwealth v. Cooper, 

941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a 

petitioner must establish that: (1) the underlying substantive 

claim has arguable merit; (2) counsel did not have a reasonable 

basis for his or her act or omission; and (3) the petitioner suffered 

prejudice as a result of counsel’s deficient performance, “that is, 

a reasonable probability that but for counsel’s act or omission, the 

outcome of the proceeding would have been different.” Id. A 

PCRA petitioner must address each of these prongs on appeal. 

See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 

2007) (explaining that “appellants continue to bear the burden of 

pleading and proving each of the Pierce elements on appeal to 

this Court”). A petitioner’s failure to satisfy any prong of this test 

is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations 

modified).

At the outset, we note that Appellant’s brief is extraordinarily long (363 

pages, with the body of the brief exceeding 150 pages, and more than 100 

pages of exhibits); also, Appellant’s argument tends to be rambling and often
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incoherent. We therefore summarize and analyze each of his 12 

ineffectiveness issues to the best of our ability.

For his first, second, and third issues, Appellant argues that the PCRA 

court erred by dismissing his claims that Trial Counsel was ineffective for 

failing to object to alleged instances of prosecutorial misconduct. First, 

Appellant asserts that the prosecutor inappropriately referred to him during 

closing arguments as a “predator” and the victim as “prey.” Second, Appellant 

contends that the prosecutor improperly stated during closing arguments that 

the prosecutor was “mad” about the circumstances of this case. Third, 

Appellant claims the prosecutor committed misconduct by improperly crossexamining the victim’s daughter. These issues are meritless.

This Court has explained:

A reviewing court’s “consideration of claims of prosecutorial 

misconduct is centered on whether the appellant was deprived of 

a fair trial, not deprived of a perfect trial.” Commonwealth v. 

Bronshtein, 691 A.2d 907, 922 (Pa. 1997).

Comments by a prosecutor do not constitute reversible error 

unless the unavoidable effect of such comments would be 

to prejudice the [factfinder], forming in [his] mind a fixed 

bias and hostility toward the defendant such that they could 

not weigh the evidence objectively and render a true 

verdict.

Id. at 917. Even if a prosecutor’s statement is improper, an 

appellant still may not be entitled to relief. Id. at 922. In 

addition, “it has long been held that trial judges, sitting as 

factfinders, are presumed to ignore prejudicial information 

in reaching a verdict.” Commonwealth v. Irwin, 579 A.2d 

955, 957 (Pa. Super. 1990).
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Commonwealth v. Thomas, 783 A.2d 328, 335 (Pa. Super. 2001) (citations 

modified; emphasis added).

Here, other than general assertions, Appellant’s arguments lack support 

as to how the alleged instances of prosecutorial misconduct resulted in 

prejudice. For example, Appellant states that “the prosecutor elicited 

testimony from the victim’s daughter that was irrelevant . . . and prejudicial” 

when “the only undisputed fact at issue was the causation of the victim’s 

death.” Appellant’s Brief at 19.

As noted above, to the extent a prosecutor’s remarks or questioning

were inappropriate, we must presume that the trial court, sitting as factfinder, 

was capable of disregarding any prejudicial remarks in reaching its verdict. 

See Thomas, supra. The PCRA, recognizing that Appellant was convicted 

after a non-jury trial, correctly stated that the “law is clear that trial judges 

are presumed to be able to ignore any potential prejudicial comments.” PCRA 

Court Opinion, 9/13/19, at 17. Because Appellant cannot establish that he 

was prejudiced by Trial Counsel’s failure to object to alleged instances of 

prosecutorial misconduct, his first, second, and third issues fail. See 

Wholaver, 177 A.3d at 144.

For his fourth and ninth issues, Appellant argues that the PCRA court 

erred in dismissing his claim that Trial Counsel was ineffective for not crossexamining and impeaching the testimony of Commonwealth witness, Slade 

Unis (Unis), who was an acquaintance of Appellant, having known him since 
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he was 15 years old and having worked with him on occasion. Mr. Unis 

testified that Appellant told him that Appellant knew where “we could get 

$100,000, maybe $200,000” and the victim had a safe “with $200,000 in it.” 

PCRA Court Opinion, 9/13/19, at 12. Appellant asserts that Trial Counsel was 

ineffective for failing to cross-examine Mr. Unis regarding any deals for 

leniency Unis made with the Commonwealth relating to his own criminal 

proceedings. Appellant asserts that this information was material to the case.

The PCRA court stated that counsel for Appellant’s co-defendant 

“thoroughly cross-examined” Mr. Unis regarding the benefits he received for 

testifying, which Appellant concedes. See PCRA Court Opinion, 9/13/19, at 

18; Appellant’s Brief at 23-28. “The threshold inquiry in ineffectiveness claims 

is whether the issue/argument/tactic which counsel has foregone and which 

forms the basis for the assertion of ineffectiveness is of arguable merit[.] 

Counsel cannot be found ineffective for failing to pursue a baseless or 

meritless claim.” Commonwealth v. Adams-Smith, 209 A.3d 1011, 1019 

(Pa. Super. 2019) (citation omitted). Appellant faults Trial Counsel for his 

decision not to cross-examine Mr. Unis; however such cross-examination 

would have been duplicative of the cross-examination by counsel for 

Appellant’s co-defendant. Thus, Appellant’s ineffective assistance of counsel 

claims relating to Mr. Unis are baseless and Appellant’s fourth and ninth issues

do not merit relief. See Adams-Smith, 209 A.3d at 1019.
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For his fifth issue, Appellant argues that the PCRA court erred in 

dismissing his claim that Trial Counsel was ineffective for failing to retain a 

cardiologist to testify about the victim’s cause of death. When raising a claim 

of ineffective assistance of counsel for the failure to call a witness at trial, a 

petitioner must establish:

(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). To 

demonstrate prejudice, a petitioner “must show how the uncalled witnesses’ 

testimony would have been beneficial under the circumstances of the case.” 

Id. at 1109 (quotations and citations omitted). “Thus, counsel will not be 

found ineffective for failing to call a witness unless the petitioner can show 

that the witness’s testimony would have been helpful to the defense.” Id.

Appellant has failed to establish any of the five factors set forth in 

Sneed. Most importantly, Appellant does not explain how he would have 

benefitted from the testimony of a cardiologist. Notably, Appellant likewise 

address the necessity of cardiologist testimony when Dr. Cyril Wecht, a 

forensic pathologist, testified for the defense that the victim’s injuries from 

the assault “bore no relationship whatsoever” to the victim’s cause of death. 

N.T., 8/25/15, at 20. Thus, Appellant’s fifth issue lacks merit. See 

Wholaver, 177 A.3d at 144.
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For his sixth issue, Appellant argues that the PCRA court erred in 

dismissing his claim that Trial Counsel was ineffective for failing to challenge 

the constitutionality of Pennsylvania’s murder statute, 18 Pa.C.S.A. § 2502,

and for failing to object to the trial court’s lack of subject matter jurisdiction. 

This issue is waived.

With respect to Appellant’s claim that Trial Counsel was ineffective for 

failing to challenge the constitutionality of Pennsylvania’s murder statute, “a 

statute will not be found unconstitutional unless it clearly, palpably, and plainly 

violates the Constitution. If there is any doubt as to whether a challenger has 

met this high burden, then we will resolve that doubt in favor of the statute’s 

constitutionality.” Commonwealth v. Thompson, 106 A.3d 742, 763 (Pa. 

Super. 2014).

Appellant’s argument is mostly nonsensical, and includes no citation to 

pertinent authority. Moreover, Appellant fails to reference any basis upon 

which we could conclude that the statute is unconstitutional. Similarly, 

Appellant fails to develop any argument as to how the trial court lacked subject 

matter jurisdiction. Our Supreme Court has long held that it is not the courts’

obligation to formulate arguments on behalf of an appellant. See 

Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008). Therefore, 

Appellant has waived his claim that Trial Counsel was ineffective for failing to 

challenge the constitutionality of the murder statute and for failing to object 

to the trial court’s lack of subject matter jurisdiction. See Commonwealth 
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v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“where an appellate brief fails to 

provide any discussion of a claim with citation to relevant authority or fails to 

develop the issue in any other meaningful fashion capable of review, that claim 

is waived”); Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t 

is a well settled principle of appellate jurisprudence that undeveloped claims 

are waived and unreviewable on appeal.”); see also Pa.R.A.P. 2119(a) 

(requiring that each argument must be “followed by such discussion and 

citation of authorities as are deemed pertinent”).

For his seventh issue, Appellant argues that the PCRA court erred in 

dismissing his claim that Trial Counsel conceded his ineffectiveness at 

Appellant’s sentencing hearing. Appellant asserts that Trial Counsel likewise 

admitted to having a conflict of interest in representing Appellant such that 

Appellant is entitled to a new trial.

At Appellant’s sentencing hearing, after the trial court sentenced 

Appellant, Trial Counsel orally requested permission to withdraw from the 

case. N.T., 10/19/15, at 33-34. Trial Counsel sought to withdraw because he 

correctly anticipated that Appellant would assail Trial Counsel’s 

representation. See id. At no point did Trial Counsel concede that he was 

ineffective, nor did Trial Counsel express that he had a conflict of interest in 

representing Appellant. See id. Again, the record does not support 

Appellant’s ineffectiveness claim. See Wholaver, 177 A.3d at 144.
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For his eighth issue, Appellant argues that the PCRA court erred in 

dismissing his claim that the “cumulative effect” of Trial Counsel’s 

ineffectiveness resulted in prejudice and warranted a new trial. Appellant’s 

Brief at 54. Our Supreme Court “has repeatedly emphasized [that] no number 

of failed claims may collectively warrant relief i[f] they fail to do so 

individually.” Commonwealth v. Sepulveda, 55 A.3d 1108, 1150 (Pa. 

2012). The Supreme Court recognized, however, that “where multiple 

instances of deficient performance are found, the cumulative effect can result

in prejudice.” Id. (citations omitted). As discussed above, Appellant has not 

demonstrated that any of his individual claims of ineffective assistance of 

counsel have merit. Consequently, Appellant’s claim of cumulative

ineffectiveness fails.

For his tenth issue, Appellant argues that PCRA Counsel was ineffective 

for failing to raise a claim that Appellant’s second trial should have been barred 

on double jeopardy grounds because the mistrial in his first trial was the result

of prosecutorial misconduct. Because Appellant previously litigated the double 

jeopardy issue on direct appeal, it is not a cognizable claim for relief on 

collateral review:

A claim that has been previously litigated is not cognizable for 

collateral relief. 42 Pa.C.S.A. § 9544(a)(2). The PCRA defines a 

matter as having been previously litigated when “the highest 

appellate court in which the petitioner could have had review as a 

matter of right has ruled on the merits of the issue.” Id. “[T]he 

fact that a petitioner presents a new argument or advances a new 

theory in support of a previously litigated issue will not circumvent 
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the previous litigation bar.” Commonwealth v. Burkett, 5 A.3d 

1260, 1270 (Pa.Super.2010)[.]

Commonwealth v. Roane, 142 A.3d 79, 94 (Pa. Super. 2016).

Appellant asks us, in the context of his ineffective assistance of counsel 

claim, to revisit whether the Commonwealth engaged in prosecutorial 

misconduct by intentionally causing a mistrial. This Court already rejected 

this claim. See Chermer, 128 WDA 2016 at 8. As we already rejected 

Appellant’s double jeopardy issue on the merits, and our Court is the highest 

appellate court in which Appellant could appeal the issue as of right, this issue 

was previously litigated and is not cognizable under the PCRA. See Roane, 

142 A.3d at 94. Appellant’s tenth issue is unavailing.

Finally, for his eleventh and twelfth issues, Appellant appears to argue 

that the PCRA court erred in permitting PCRA Counsel to withdraw because 

she failed to comply with the technical mandates of Turner/Finley, and was 

ineffective for filing a no-merit letter and declining to raise any meritorious 

issues on his behalf. Both issues lack merit.

Pursuant to Turner/Finley, an “[i]ndependent review of the record by 

competent counsel is required before withdrawal [on collateral review] is 

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

Pitts, our Supreme Court explained that independent review requires proof 

of:

1. A “no merit” letter by PC[R]A counsel detailing the nature and 

extent of his review;
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2. The “no merit” letter by PC[R]A counsel listing each issue the 

petitioner wished to have reviewed;

3. The PC[R]A counsel’s “explanation”, in the “no merit” letter, of 

why the petitioner’s issues were meritless;

4. The PC[R]A court conducting its own independent review of the 

record; and

5. The PC[R]A court agreeing with counsel that the petition was 

meritless.

Id. (citation and brackets omitted).

Additionally: 

Counsel must also send to the petitioner: (1) a copy of the “nomerit” 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.

If counsel fails to satisfy the foregoing technical prerequisites of 

Turner/Finley, the court will not reach the merits of the 

underlying claims but, rather, will merely deny counsel’s request 

to withdraw. Upon doing so, the court will then take appropriate 

steps, such as directing counsel to file a proper Turner/Finley 

request or an advocate’s brief.

However, where counsel submits a petition and no-merit letter 

that do satisfy the technical demands of Turner/Finley, the 

[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. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations 

omitted).

Here, PCRA Counsel filed a “no-merit” letter and petition to withdraw 

which stated the nature and extent of her review, listed the issues for which 

Appellant sought review, explained why and how the issues lacked merit, and 
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requested permission to withdraw. See Turner/Finley Letter, 12/10/18; 

Motion to Withdraw as Counsel, 12/10/18. PCRA Counsel sent Appellant a 

copy of the “no-merit” letter, a copy of the petition to withdraw, and a 

statement advising Appellant of the right to proceed pro se or by privately 

retained counsel. See id. Thus, the record reflects that PCRA Counsel 

submitted a petition to withdraw and “no-merit” letter satisfying the demands 

of Turner/Finley. Appellant’s claim that PCRA Counsel failed to comply with 

the Turner/Finley is meritless.

Lastly with respect to Appellant’s claim of PCRA Counsel ineffectiveness, 

we address layered ineffective claims as follows:

Where the defendant asserts a layered ineffectiveness claim[,] he 

must properly argue each prong of the three-prong ineffectiveness 

test for each separate attorney.

Layered claims of ineffectiveness are not wholly distinct from the 

underlying claims[,] because proof of the underlying claim is an 

essential element of the derivative ineffectiveness claim[.] In 

determining a layered claim of ineffectiveness, the critical inquiry 

is whether the first attorney that the defendant asserts was 

ineffective did, in fact, render ineffective assistance of counsel. If 

that attorney was effective, then subsequent counsel cannot be 

deemed ineffective for failing to raise the underlying issue.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations 

omitted).

As we have reiterated throughout this memorandum, there is no support 

in the record for Appellant’s claims that Trial Counsel was ineffective. 

Consequently, we are unpersuaded by Appellant’s claim of PCRA Counsel’s 

ineffectiveness. See id. Accordingly, because we find no merit to Appellant’s 
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issues, we conclude that the PCRA court did not err in dismissing Appellant’s 

petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2020