J-A16043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS PENNYPACKER 

Appellant

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 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 the 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 reckless 

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* 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.
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endangerment. While untimely, the trial court addressed and decided the 

sufficiency issue on the merits. Pennypacker 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 the PCRA court 

summarily dismissed pursuant to Pa.R.Crim.P. 907. Moreover, Pennypacker’s 

counsel in this appeal has filed an Anders brief3 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 withdrawn that claim, and it is not now at issue.
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[Pennypacker] and his daughter had several drinks. 

[Pennypacker’s] niece and Sherry, a female acquaintance 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” her 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 daughter 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 after the judgment of 

sentence was entered, it was affirmed on direct appeal. See id. Our Supreme 

Court denied further review. See Commonwealth v. Pennypacker, 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.
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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 issue 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 ineffectiveness 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 Anders 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:
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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 that the appeal is frivolous.

Santiago, 978 A.2d at 361.

Here, we find that counsel has substantially complied with the 

requirements of Anders. Counsel 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” letter5 detailing the extent of his 

review, the issues Pennypacker wished 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 or 

proceeding pro se.

Since 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).
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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 

1015, 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 counsel’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 ineffectiveness 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.” Commonwealth v. Velasquez, 216 A.3d 1146, 1149 (Pa. 

Super. 2019) (citation omitted). Counsel cannot be deemed ineffective for 

failing to raise claims that are meritless. See Commonwealth v. Spotz, 896 

A2d 1191, 1210 (Pa. 2006).
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Moreover, to be eligible for PCRA 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 reckless endangerment convictions. However, the 

record shows that these 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 found 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.

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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).
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Order affirmed. Petition to withdraw granted.

Jude McCaffery joins the memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2022