J

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

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS PENNYPACKER

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1651 EDA 2021 Appeal from the PCRA Order Entered August 5, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0011900

- 2015

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J. *
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 22, 2022
Thomas Pennypacker (Pennypacker) appeals t he order of the Court of
Common Pleas of Philadelphia County ( PCRA court) denying his claims of

ineffective assistance of counsel. 1
Following a bench trial in 2017, Pennypacker was found guilty of
aggravated assault, simple assault and reckless endangerment. 2 His trial
counsel filed a post

- verdict motion challenging the sufficiency of the evidence
as to the serious bodily injury element of aggravated assault and rec kless

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 In Pennsylvania, the Post

- Conviction Relief Act, 42 Pa.C.S. §§ 9541

- 9146 (PCRA) , governs all claims for post

- conviction relief , including Pennypacker’s ineffectiveness claims.

2 18 Pa.C.S. §§ 2702(a) , 2701(a) , and 2705 , respectively.J

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endangerment

. While untimely, the trial court addressed and decided the
sufficiency issue on the merits. Penn y packer was sentenced to an aggregate
prison term of 3.5 to 7 years, followed by 2 years of probation. The sentence

was affirmed on direct appeal

. Pennypacker filed a PCRA petition in which he contended in part that
trial counsel and appellate counsel were ineffective in failing to challenge the
sufficiency as to the two counts discussed above which t he PCRA court
summarily dismissed pursua nt to Pa.R.Crim.P. 907

. Moreover, Pennypacker’s
counsel in this appeal has filed an Anders brief 3 and petitioned to withdraw
from the case on the ground that it is frivolous

. We affirm the PCRA court’s
dismissal of Pennypacker’s PCRA petition and grant counsel’s petition to

withdraw. 4

I.
A panel of this Court has previously summarized the underlying case

facts as follows:
[O]n November 6, 2015, [Pennypacker] invited his daughter to join him at Stevenson ’s Place, a bar in Philadelphia, so [Pennypacker] could buy his daughter a drink for her birthday and give her some money. Throughout the evening, both

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3 Counsel’s brief was filed pursuant to Anders v. California , 386 U.S. 738 (1967).

4 Pennypacker initially made an additional claim that his counsel was ineffective in not challenging the weight of the evidence as to the serious bodily injury element of aggravated assault and reckless endangerment. However, he has since withdr a w n that cl aim, and it is not now at issue.J

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[Pennypacker] and his daughter had several drinks. [Pennypacker’s] niece and Sherry, a female acquaint ance of [defendant], also joined the party. Later that night, an altercation arose outside the bar between [Pennypacker’s] daughter and Sherry in which [Pennypacker’s] daughter threw a beer bottle at Sherry. [Pennypacker] grabbed his daughter, “threw” he r in the car, and “started choking [her].”
[Pennypacker’s] daughter told [him] he was choking her, but [Pennypacker] would not listen and did not stop. When the car door was opened, [Pennypacker] pulled his daughter out of the car and “threw” his daughte r to the ground. At some point thereafter, [Pennypacker’s] daughter attempted to get into the truck of a male acquaintance.
Pennypacker pulled his daughter by her hair from the “pretty high” truck and again “slammed” her to the ground. During the course of these events, [defendant’s] daughter sustained several injuries, including a hematoma on the right side of her jaw, swelling and bruising of her face and eye, and several scratches.
Commonwealth v. Pennypacker , 732 EDA 2018 (Pa. Super. September 11,
2019) (internal citations omitted).
Pennypacker was found guilty as charged, and a fter the judgment of
sentence was entered, it was affirmed on direct appeal. See id . O ur Supreme

Court denied further review. See Commonwealth v. Pennypacke r , 223
A.3d 243 (Pa. 2020) (denying petition for allowance of appeal).
Pennypacker timely filed a petition for PCRA relief on April 17, 2020, and
counsel was appointed. An amended PCRA petition was filed on Pennypacker’s
behalf, the central contention of which was that both his trial counsel and his
appellate attorney declined to make meritorious challenges to the sufficiency
and weight of the evidence as to the serious bodily harm elements of
aggravated assault and reckless endangerment.J

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The PCRA court summarily dismissed the amended petition on August
5, 2021 , after fully complying with Rule 907. See Pa.R.Crim.P. 907(2)
(permitting denial of a PCRA petition without a hearing as long there is no
genuine issue of material fact, the petitioner is not entitled to relief as a matter
of law, the petitioner has been given advance notice of the PCRA court’s
intention to dismiss, and the petitioner has been given 20 days to respond to
the notice).
Pennypacker timely appealed, and he now raises one is sue in his brief:
Were trial counsel and appellate counsel ineffective for failing to litigate the issue of whether the evidence presented by the Commonwealth was sufficient to convict [Pennypacker] of aggravated assault and recklessly endangering another person when there was a lack of proof that any serious bodily injury had been done to the victim or was attempted?
Appellant’s Brief, at 3 (numbers omitted)

.
II. Before addressing the merits of Pennypacker’s ineffective ness claim, we

must evaluate whether his counsel’s brief and petition to withdraw comport
with the procedural and substantive requirements of Anders

. See

Commonwealth v. Bennett , 124 A.3d 327, 330 (Pa. Super. 2015) (requiring

consideration of adequacy of Ande rs brief before reviewing merits of the
appeal )

. To withdraw pursuant to Anders , “counsel must file a brief that
meets the requirements established by our Supreme Court in

Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009) .” Specifically,

the Anders brief must:J

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(1) provide a summary of the procedural history and facts, with citations to the record;
(2) refer to anything in the record that counsel believes arguably supports the appeal;
(3) set forth counsel ’ s conclusion that the appeal is frivolous; and
(4) state counsel ’ s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion t hat the appeal is frivolous.
Santiago , 978 A.2d at 361

. Here, we find that counsel has substantially complied with the
requirements of Anders . C ounsel determined that the appeal is “wholly

frivolous , ” and he filed an Anders brief in accordance with Commonwealth

v. Santiago , 978 A.2d 349, 361 (Pa. 2009)

. See Anders Brief, at 16

- 18.
Pennypacker has been furnished a copy of the Anders brief

. Moreover,

counsel sent Pennypacker a “no

- merit” letter 5 detailing the extent of his
review, the issues Pennypacker wis h ed to raise , and an explanation as to why , in counsel’s opinion, the issues were meritless; Pennypacker was also advised

that he could raise any additional issues after retaining new counsel o r proceed ing pro se

. S ince Pennypacker has not filed a response or retained new counsel, we must proceed by fully examining all of the proceedings, as well as the issue

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5 See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) ; Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).J

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identified in the Anders brief , to determine whether the present appeal is , in

fact , wholly frivolous. Commonwealth v. Yorgey , 188 A.3d 1190, 1195 (Pa.
Super. 2018) ( en banc ) (requiring court to conduct “a full examination of all
the proceedings, to decide whether the case is wholly frivolous.”) ; see
Commonwealth v. Dempster , 187 A.3d 266 (Pa. Super. 2018) (same)

. Counsel is presumed to be effective, and a petitioner for PCRA relief
bears the burden of proving each element of ineffectiveness by a
preponderance of the evidence. See Commonwealth v

. Postie , 200 A.3d

101 5, 1023 (Pa. Super. 2018). The three elements of an ineffectiveness claim
are (1) that the underlying claim of error has arguable merit; (2) that counsel
had no reasonable basis for the disputed aspect of her performance; and (3)

that as a result of couns el’s deficient performance, the petitioner suffered
prejudice. See Commonwealth v

. Pierce , 527 A2d 973, 975 (Pa. 1987);
see also Commonwealth v. Spotz , 896 A2d 1191, 1210 (Pa. 2006) (same).
Failing to satisfy any of these prongs is fatal to an ineffective ness claim.

Commonwealth v. Sneed , 45 A3d 1096, 1106 (Pa. 2012). In the context
of a PCRA claim, “prejudice” means that, “absent counsel’s conduct, there is
a reasonable probability [that] the outcome of the proceedings would have

been different.” Commo nwealth v

. Velasquez , 216 A.3d 1146, 1149 (Pa.
Super. 2019) (citation omitted). C ounsel cannot be deemed ineffective for
failing to raise claims that are meritless. See Commonwealth v. Spotz , 896
A2d 1191, 1210 (Pa. 2006).J

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Moreover, to be eligible for PC RA relief, the petitioner must establish
that the allegations have not been previously litigated or waived. See 42 Pa.C.S. § 9543(a)(3). An issue is deemed finally litigated if “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. ” 42 Pa.C.S. § 9544(a)(2). 6
Pennypacker’s claim has no merit because it rests on a faulty factual
premise. He has argued that trial counsel and appellate counsel performed
ineffectively by not litigating whether there was sufficient evidence to sustain
his aggravated assault and rec kless endangerment conviction s

. However, the

record shows that t hese issues were fully litigated on the merits in
Pennypacker’s direct appeal , making him ineligible for PCRA relief under 42
Pa.C.S. § 9543(a)(3)

. See generally Commonwealth v. Pennypacker , 732 EDA 2018 (Pa. Super. September 11, 2019) (unpublished memorandum
decision); see also Commonwealth v. Pennypacker , 223 A.3d 243 (Pa.
2020) (denying petition for allowance of appeal). Additionally, we have
independently reviewed the record and have fou nd no non

- frivolous issues
that might arguably entitle Pennypacker to relief. Thus, counsel is permitted
to withdraw, and the PCRA court’s order dismissing the petition must stand

.

_________________ __________ ______ ____ _______

6 “On appeal from the denial of PCRA relief, our standard of review is whether the findings of the PCRA court are supported by the record and free of legal error.” Commonwealth v. Abu
- Jamal , 833 A.2d 719, 723 (Pa. 2003) (citation omitted). “We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party.” Commonwealth
v. Mason , 130 A.3d 601, 617 (Pa. 2015) (citation omitted).J

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Order affirmed. Petition to withdraw granted.
Jude McCaffery joins the me morandum.
Judge McLaughlin concurs in the result.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/22/2022