J-S43037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT JOHN PRETTI

Appellant No. 3390 EDA 2014

Appeal from the PCRA Order October 27, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001851-2005;

CP-23-CR-0004226-2005

BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 30, 2015

Appellant, Robert John Pretti, appeals from the order entered in the 

Delaware County Court of Common Pleas, which denied his first petition 

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm. 

In its opinion, the PCRA court fully and correctly sets forth the relevant 

facts of this case as follows:

On January 30, 2005, at approximately 6:43 p.m., 

Pennsylvania State Trooper Louis Vitali was on patrol in 

Concord Township, Delaware County[,] Pennsylvania, 

when he observed a black male running across U.S. Route 

1 in what appeared to be a distressed manner. The black 

male ran directly in front of the Trooper’s patrol car and 

proceeded running in the direction of the Concordville Inn 

Restaurant. Trooper Vitali attempted to locate the black 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
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male, but was unsuccessful in this regard. At 7:10 [p.m.], 

members of the Pennsylvania State Police were dispatched 

to the Whitehall Apartment Complex to answer a call 

regarding an unresponsive person. Upon their arrival, they 

discovered a black male, later identified as Eric Oswald 

LaRoche, lying at the bottom of the steps in the front 

hallway entrance, face down in a small pool of blood, with 

a gunshot wound to the chest. Subsequently, a paramedic 

called to the scene pronounced the victim dead. 

While investigating the shooting, members of the 

Pennsylvania State Police Department conducted an 

investigation and observed a small hole in the middle of 

the door of Apartment 2A, which appeared to have been 

made by a small caliber bullet. The State Troopers 

knocked on the door, but no one responded. The State 

Troopers gained access to the apartment to check on the 

safety and welfare of the occupants of the apartment, if 

any. Upon entry to the apartment, the State Troopers 

located in a closet, a .22 caliber rifle case and a box of .22 

caliber ammunition. After securing the apartment, a 

Search Warrant was obtained and during the subsequent 

search, the State Troopers discovered a spent .22 caliber 

rifle shell casing, as well as cocaine, bagging material, a 

scale and other paraphernalia used in connection with the 

sale of illegal narcotics. 

Several days later, the State Troopers received a 

telephone call from Robert Keller, Esquire, indicating that 

he represented Appellant and further indicating that 

Appellant wanted to turn himself in and make a statement. 

Appellant did in fact turn himself in and after being read 

his Miranda Warnings, he made a statement admitting 

that he resided in apartment 2A and that on January 30, 

2005, he heard persons trying to gain entry through his 

front door. Consequently, he obtained his rifle and blindly 

shot through the front door. 

(PCRA Court’s Opinion, filed January 28, 2015, at 1-2). Appellant was 

charged with murder, possession with intent to distribute (“PWID”), and 

related offenses. Appellant filed an omnibus pretrial motion, which the court 
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denied following a hearing. Thereafter, on April 26, 2007, Appellant filed a 

petition to dismiss the charges due to a violation of Pa.R.Crim.P. 600. The 

court conducted a hearing, and denied Appellant’s petition on May 17, 2007. 

On February 29, 2008, a jury convicted Appellant of third-degree 

murder and PWID. The court sentenced Appellant on May 27, 2008, to 

fifteen (15) to thirty (30) years’ imprisonment for murder, and a consecutive 

eight (8) to twenty (20) years’ imprisonment for PWID. Appellant timely 

filed a post-sentence motion, which the court denied. This Court affirmed 

Appellant’s judgment of sentence on October 8, 2009, and our Supreme 

Court denied allowance of appeal on May 18, 2010. See Commonwealth 

v. Pretti, 987 A.2d 822 (Pa.Super. 2009), appeal denied, 606 Pa. 663, 995 

A.2d 353 (2010). 

Appellant timely filed his first PCRA petition pro se on May 18, 2011. 

The PCRA court appointed counsel, who filed an application to withdraw and 

a “no-merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 

544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 

(Pa.Super. 1988) (en banc). The PCRA court granted counsel’s application 

to withdraw, and issued on September 17, 2014, a notice of intent to 

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. 

Appellant filed a pro se response, which alleged PCRA counsel’s 

ineffectiveness. The PCRA court denied Appellant’s petition on October 27, 

2014, and Appellant timely filed a notice of appeal. The PCRA court did not 
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order Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and Appellant filed none. 

Appellant raises the following issues for our review:

DID THE PCRA COURT [ERR] IN SUMMARILY DISMISSING 

APPELLANT’S PETITION WHEN PCRA COUNSEL FAILED TO 

RAISE A MERITORIOUS CLAIM OF TRIAL COUNSEL’S 

INEFFECTIVENESS FOR NOT REQUESTING AN 

ACCOMPLICE “CORRUPT SOURCE” JURY INSTRUCTION 

PERTAINING TO COMMONWEALTH WITNESS BRIAN “LOU” 

DRIGGINS? 

DID THE PCRA COURT [ERR] IN SUMMARILY DISMISSING 

APPELLANT’S PETITION WHEN PCRA COUNSEL FAILED TO 

RAISE A MERITORIOUS CLAIM OF TRIAL COUNSEL’S 

INEFFECTIVENESS FOR FLIP-FLOPPING ON THE ACTUAL 

INNOCENCE DEFENSE DURING CLOSING SUMMATION? 

DID THE PCRA COURT [ERR] IN SUMMARILY DISMISSING 

APPELLANT’S PETITION WHEN PCRA COUNSEL’S “NOMERIT” LETTER DID NOT MEET THE PREREQUISITES OF 

TURNER/FINLEY BECAUSE [PCRA] COUNSEL DID NOT 

MAKE THE NECESSARY THOROUGH REVIEW OF THE 

RELEVANT RECORD PERTAINING TO THE RULE 600 

CLAIM? 

(Appellant’s Brief at 3). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the 

findings of the PCRA court if the record contains any support for those 

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal 
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denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, 

however, to the court’s legal conclusions. Commonwealth v. Ford, 44 

A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a 

PCRA hearing as a matter of right; the PCRA court can decline to hold a 

hearing if there is no genuine issue concerning any material fact, the 

petitioner is not entitled to PCRA relief, and no purpose would be served by 

any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338 

(Pa.Super. 2012). 

In issues one and two, Appellant argues PCRA counsel was ineffective 

for failing to raise claims regarding trial counsel’s ineffectiveness. Appellant 

alleges trial counsel was ineffective for failing to request an accomplice jury 

instruction after the Commonwealth’s witness, Mr. Driggins, testified he and 

the victim went to Appellant’s apartment to buy drugs, and that Mr. Driggins 

was waiting outside when Appellant killed the victim. Appellant claims trial 

counsel lacked any reasonable basis not to request this instruction following 

Appellant’s testimony that Mr. Driggins, and not Appellant, killed the victim 

while Mr. Driggins was in Appellant’s apartment. Appellant contends trial 

counsel’s ineffectiveness prejudiced Appellant because the jury was not 

cautioned against placing too much blame on Appellant. Appellant also 

claims trial counsel was ineffective for changing Appellant’s defense strategy 

of “actual innocence” when trial counsel argued in closing that Appellant 

killed the victim in self-defense. Appellant avers trial counsel lacked a 
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reasonable basis to change Appellant’s defense strategy, which sabotaged 

Appellant’s “actual innocence” testimony. Appellant alleges he suffered 

substantial prejudice because trial counsel’s closing argument of self-defense 

conceded that Appellant had committed perjury when he testified that Mr. 

Driggins had killed the victim. Appellant maintains PCRA counsel’s failure to 

raise these claims in an amended PCRA petition constituted ineffective 

assistance, and counsels’ actions adversely affected the outcome of the 

proceedings. Appellant concludes we should vacate the PCRA court’s order, 

and remand for a PCRA hearing with new counsel. We disagree. 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, the petitioner is 

required to demonstrate that: (1) the underlying claim is of arguable merit; 

(2) counsel had no reasonable strategic basis for his action or inaction; and, 

(3) but for the errors and omissions of counsel, there is a reasonable 

probability that the outcome of the proceedings would have been different. 

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The 

failure to satisfy any prong of the test for ineffectiveness will cause the claim 

to fail. Williams, supra. 

“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....” Commonwealth 
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v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot 

be found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004). 

Once this threshold is met we apply the ‘reasonable basis’ 

test to determine whether counsel’s chosen course was 

designed to effectuate his client’s interests. If we conclude 

that the particular course chosen by counsel had some 

reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective. 

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted). 

Prejudice is established when [an appellant] demonstrates

that counsel’s chosen course of action had an adverse

effect on the outcome of the proceedings. The [appellant]

must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome. In [Kimball, supra], we held 

that a “criminal [appellant] alleging prejudice must show 

that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.” 

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 

(2002) (some internal citations and quotation marks omitted). 

Instantly, Appellant’s claims regarding PCRA and trial counsels’ 

ineffectiveness lack merit. Appellant argues counsels’ ineffectiveness had an 

adverse impact on the outcome of the proceedings. Nevertheless, Appellant 

has not demonstrated that, but for trial and PCRA counsels’ alleged 

ineffectiveness, there is a reasonable probability that the result of 

Appellant’s proceedings would have been different. See Chambers, supra. 

Appellant has failed to prove counsels’ actions or omissions caused Appellant 
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any prejudice. See Kimball, supra. Therefore, Appellant’s issues one and 

two merit no relief. See Williams, supra. 

In his final issue, Appellant argues PCRA counsel’s Turner/Finley “nomerit” letter was deficient.2

 Specifically, Appellant contends PCRA counsel 

conducted an inadequate review of Appellant’s Rule 600 claim by failing to 

request a transcript from the Rule 600 hearing. Appellant maintains PCRA 

counsel’s representation was deficient because he was obligated to examine 

all relevant records pertaining to Appellant’s Rule 600 issue before 

submitting a Turner/Finley “no-merit” letter. Appellant concludes we 

should vacate and remand for a hearing with new counsel. We disagree. 

“[T]o succeed on an allegation of...counsel’s ineffectiveness...a postconviction petitioner must, at a minimum, present argumentation relative to 

each layer of ineffective assistance, on all three prongs of the ineffectiveness 

standard....” Commonwealth v. D’Amato, 579 Pa. 490, 500, 856 A.2d 

806, 812 (2004) (internal citations omitted). “[A] petitioner does not 

preserve a...claim of ineffectiveness merely by focusing his attention on 

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2

“[A]n appellate court may [not] sua sponte review the sufficiency of a nomerit letter when the defendant has not raised such issue....” 

Commonwealth v. Pitts, 603 Pa. 1, 9, 981 A.2d 875, 879 (2009) 

(determining appellant failed to raise issue of PCRA counsel’s “no-merit” 

letter after PCRA court issued Rule 907 notice). In the present case, 

Appellant challenged the adequacy of PCRA counsel’s “no-merit” letter in his 

response to the PCRA court’s Rule 907 notice. Therefore, our review of 

PCRA counsel’s “no-merit” letter does not conflict with our Supreme Court’s 

decision in Pitts. 
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whether...counsel was ineffective. Rather, the petitioner must also present 

argument as to how the second and third prongs of the Pierce test are met 

with regard to the...claim.” Commonwealth v. Santiago, 579 Pa. 46, 69, 

855 A.2d 682, 696 (2004). “[A]n undeveloped argument, which fails to 

meaningfully discuss and apply the standard governing the review of 

ineffectiveness claims, simply does not satisfy [the petitioner’s] burden of 

establishing that he is entitled to any relief.” Commonwealth v. Bracey, 

568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001). 

Moreover, “[b]efore an attorney can be permitted to withdraw from 

representing a petitioner under the PCRA, Pennsylvania law requires 

counsel to file and obtain approval of a ‘no-merit’ letter pursuant to the 

mandates of Turner/Finley.” Commonwealth v. Karanicolas, 836 A.2d 

940, 947 (Pa.Super. 2003) (emphasis in original).

[C]ounsel must...submit a “no-merit” letter to the trial 

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 the petitioner wants to have reviewed, 

explaining why and how those issues lack merit, and 

requesting permission to withdraw.

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

must also send to the petitioner a copy of the “no-merit” letter or brief and 

petition to withdraw and advise the petitioner of his right to proceed pro se

or with new counsel. Id. “Substantial compliance with these requirements 

will satisfy the criteria.” Karanicolas, supra. 

Here, Appellant’s argument essentially alleges PCRA counsel’s 
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ineffectiveness for failure to comply with the requirements of 

Turner/Finley. Appellant baldly asserts his right to effective assistance of 

PCRA counsel. Nevertheless, Appellant does not attempt to apply the 3-part 

standard governing the review of ineffectiveness claims. See Kimball, 

supra. Thus, Appellant has not established that he is entitled to any relief 

on his claims. See Bracey, supra. 

Furthermore, PCRA counsel substantially complied with the 

requirements of a Turner/Finley “no-merit” letter when he filed the letter 

and application to withdraw as counsel with the PCRA court. PCRA counsel 

stated he corresponded with Appellant and reviewed Appellant’s file and 

available court records. PCRA counsel also listed the ineffective assistance 

of counsel claim regarding Rule 600 that Appellant wished to raise, and 

explained why the claim merits no relief. PCRA counsel indicated that he 

served Appellant with a copy of the “no-merit” letter and application to 

withdraw, which notified Appellant of PCRA counsel’s request to withdraw 

and provided an explanation of Appellant’s right to proceed pro se or with 

private counsel. Thus, PCRA counsel substantially complied with the 

Turner/Finley requirements. See Commonwealth v. Widgins, 29 A.3d 

816 (Pa.Super. 2011) (holding PCRA counsel substantially complied with 

Turner/Finley requirements to withdraw as counsel); Karanicolas, supra. 

Accordingly, we affirm. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2015