J-S19038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

KEITH ALLEN EBERT, :

:

Appellant : No. 1349 EDA 2015

Appeal from the Order April 13, 2015 

in the Court of Common Pleas of Lehigh County,

Criminal Division, No(s): CP-39-CR-0004816-2012

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 06, 2016

Keith Allen Ebert (“Ebert”) appeals, pro se, from the Order entered on 

April 13, 2015, wherein the court entered a Pa.R.Crim.P. 907 Notice of its 

Intent to Dismiss Ebert’s first Petition under the Post Conviction Relief Act 

(“PCRA”). See 42 Pa.C.S.A. §§ 9541–9546. We affirm.

On June 5, 2013, following a jury trial, Ebert was found guilty of two 

counts of driving under the influence. The trial court also found him guilty of 

the summary charges of careless driving and disorderly conduct. On July 5, 

2013, the trial court sentenced Ebert to an aggregate prison term of 1 year 

and 45 days to 5 years and 45 days. Ebert filed a Motion for 

Reconsideration, which the trial court denied. On October 24, 2014, this 

Court affirmed Ebert’s judgment of sentence. See Commonwealth v. 

Ebert, 108 A.3d 122 (Pa. Super. 2014) (unpublished memorandum).
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On December 3, 2014, Ebert filed a pro se PCRA Petition. The PCRA 

court appointed Attorney Mathew J. Rapa, Esquire (“Rapa”), as counsel. 

Rapa filed a “no-merit” letter pursuant to Turner/Finley,

1

along with a 

Motion to Withdraw as Counsel. The PCRA court granted Rapa’s Motion to 

Withdraw. Thereafter, the PCRA court issued a Pa.R.Crim.P. 907 Notice of 

Intent to Dismiss without a Hearing. Ebert filed a Notice of Appeal from the 

Rule 907 Notice Order. Thereafter, on July 1, 2015, the PCRA court entered 

an Order denying Ebert’s PCRA Petition. 

On appeal, Ebert raises the following questions for our review:

1. Did the [PCRA] court err when it denied [Ebert’s] claims of 

ineffective assistance of counsel at his preliminary hearings 

and [where] trial counsel failed to move or litigate and/or file 

proper pre-trial/post-trial motions and particular[l]y did not 

correspond with [Ebert] after sentencing?

2. Did the [PCRA] court err when it granted [Rapa’s] Motion to 

Withdraw as Counsel and[,] particular[l]y[,] his ineffective 

assistance of counsel?

3. Did the [PCRA] court err when it denied that the 

Commonwealth establish a prima facie case in order for trial 

to proceed[;] thus, the trial court lack[ed] jurisdiction of the 

subject matter?

Brief for Appellant at 8 (capitalization omitted).2

 

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 We note that while Ebert raises three issues on appeal, he fails to divide 

his argument section in accordance with Pa.R.A.P. 2119(a). See Pa.R.A.P. 

2119(a) (stating that “[t]he argument shall be divided into as many parts as 

there are questions to be argued[.]”).
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Before reviewing the merits of an appeal under the PCRA, we must 

determine whether we have jurisdiction to address Ebert’s appeal. It is wellsettled that “[a]n order granting, denying, dismissing, or otherwise finally 

disposing of a petition for post-conviction collateral relief shall constitute a 

final order for purposes of appeal.” Pa.R.Crim.P. 910. While an appeal may 

be regarded as prematurely filed, it is perfected once a final order is 

entered. See Pa.R.A.P. 905(a)(5) (stating that “[a] notice of appeal filed 

after the announcement of a determination but before the entry of an 

appealable order shall be treated as filed after such entry and on the day 

thereof.”). 

Here, Ebert filed a Notice of Appeal from the Rule 907 Notice, which 

was not a final order. See Pa.R.A.P. 341; Pa.R.Crim.P. 910. However, the 

record reveals that the PCRA court issued an Order of denial after Ebert filed 

his Notice of Appeal. Thus, because the PCRA court announced its final 

determination with respect to Ebert’s PCRA Petition, and subsequently filed 

its final Order, we will address his claims. See Commonwealth v. 

Swartzfager, 59 A.3d 616, 618 n.3 (Pa. Super. 2012) (concluding that 

defendant’s appeal was not quashed even though he filed a notice of appeal 

from the PCRA court’s Rule 907 notice because the PCRA court subsequently 

entered a final order denying the PCRA petition); see also Pa.R.A.P. 

905(a)(5).

We review an order [denying] a petition under the PCRA in 

the light most favorable to the prevailing party at the PCRA 
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level. This review is limited to the findings of the PCRA court 

and the evidence of record. We will not disturb a PCRA court’s 

ruling if it is supported by evidence of record and is free of legal 

error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted).

Ebert contends that his counsel was ineffective during his preliminary 

hearing. Brief for Appellant at 10-14. Ebert argues that counsel should 

have called potential prosecution witnesses at the preliminary hearing and 

presented evidence to contest the existence of a prima facie case. Id. at 

10, 12, 14. Ebert also asserts that counsel should have moved for the 

dismissal of the charges based upon deficiencies related to the preliminary 

hearing. Id. at 11.

3

To succeed on an ineffective assistance of counsel claim, Ebert must 

demonstrate by a preponderance of the evidence that

(1) [the] underlying claim is of arguable merit; (2) the particular 

course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate his interests; and (3) but 

for counsel’s ineffectiveness, there is a reasonable probability 

that the outcome of the proceedings would have been different. 

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy 

any prong of the test for ineffectiveness will require rejection of the claim. 

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is 

 

3 We note that ineffective assistance of counsel claims relative to a 

preliminary hearing are cognizable under the PCRA. See Commonwealth 

v. Stultz, 114 A.3d 865, 882 (Pa. Super. 2015).
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presumed to be effective, and the burden is on the appellant to prove 

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

Here, Ebert cannot establish actual prejudice relative to the alleged 

errors that transpired at his preliminary hearing. Indeed, “once a defendant 

has gone to trial and has been found guilty of the crime or crimes charged, 

any defect in the preliminary hearing is rendered immaterial.” 

Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013); see also 

Stultz, 114 A.3d at 881. Thus, because the truth-determining process is 

not implicated, Ebert’s ineffectiveness of counsel’s claims in this regard are 

without merit. See Commonwealth v. Lyons, 568 A.2d 1266, 1268 (Pa. 

Super. 1989) (concluding that counsel was not ineffective where petitioner 

had failed to show that “the absence of a preliminary hearing in any way 

undermined the truth determining process so as to render unreliable the trial 

court’s finding of guilt.”); see also Stultz, 114 A.3d at 881. 

Ebert additionally contends that trial counsel rendered ineffective 

assistance of counsel for failing to file post-sentencing motions to raise 

various sentencing issues. Brief for Appellant at 14. Ebert specifically 

argues that counsel did not challenge the trial court’s failure to assess 

whether he was addicted to drugs or alcohol. Id. Ebert further argues that 

counsel failed to seek a sentence in the Recidivism Risk Reduction Incentive 

(“RRRI”) program. Id.
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Here, during sentencing, the trial court explicitly stated that Ebert 

would undergo drug and alcohol abuse treatment. See N.T., 7/5/13, at 12. 

The trial court also had the benefit of a pre-sentence investigation report. 

Id. at 2; see also Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. 

Super. 2014) (stating that “[w]here pre-sentence reports exist, we shall ... 

presume that the sentencing judge was aware of relevant information 

regarding the defendant’s character and weighed those considerations along 

with mitigating statutory factors. A pre-sentence report constitutes the 

record and speaks for itself.”). Moreover, aside from bald allegations, Ebert 

has failed to demonstrate that he was eligible for the RRRI program.4 Thus, 

Ebert’s ineffectiveness claims are without merit.5

Ebert next contends that the trial court lacked subject matter 

jurisdiction. Brief for Appellant at 10, 13. It is well-settled that “all courts of 

common pleas have statewide subject matter jurisdiction in cases arising 

under the Crimes Code.” Commonwealth v. Bethea, 828 A.2d 1066, 1074

 

4 At sentencing, the trial court noted that Ebert had a offense gravity score 

of 1 and a prior record score of 5. N.T., 7/5/13, at 3. The trial court also 

noted that Ebert had four prior DUIs. Id. at 4, 5. 

5 We note that Ebert also claims that counsel was ineffective for failing to file 

pre-trial motions. Brief for Appellant at 10. However, Ebert does not 

indicate which issues counsel failed to raise. See Pa.R.A.P. 2119(a). Thus, 

this claim is waived.
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(Pa. 2003). Thus, Ebert’s contention is without merit.6

Ebert finally contends that his PCRA counsel, Rapa, was ineffective for 

stating that Ebert’s ineffectiveness claims with regard to the preliminary 

hearing were without merit when withdrawing as counsel. Brief for Appellant 

at 13. 

Initially, Ebert’s failure to raise his claim of ineffectiveness of PCRA 

counsel in a response to the Rule 907 Notice results in waiver of his claim. 

See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa. Super. 2012) 

(stating that “when counsel files a Turner/Finley no-merit letter to the 

PCRA court, a petitioner must allege any claims of ineffectiveness of PCRA 

counsel in a response to the court’s notice of intent to dismiss.”); see also 

Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009). In any event, 

as noted above, Ebert’s underlying claims regarding alleged defects at the 

preliminary hearing do not entitle him to relief. See Sanchez, 82 A.3d at 

984. Thus, Rapa was not ineffective when stating that Ebert’s claims were

 

6 To the extent Ebert claims that the trial court did not have subject matter 

jurisdiction based upon errors at the preliminary hearing, we conclude that 

this claim is without merit. As noted above, Ebert was found guilty following 

a jury trial, rendering any defects at the preliminary hearing immaterial. 

See Sanchez, 82 A.3d at 984.
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without merit in the Turner/Finley “no-merit” letter.7

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/6/2016

 

7 We additionally observe that Rapa fulfilled all of the requirements to 

withdraw pursuant to Turner/Finley. See Pitts, 981 A.2d at 876 n.1 

(setting forth the requirements to withdraw as counsel in PCRA 

proceedings); Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 

2011) (noting that the Supreme Court in Pitts did not expressly overrule the 

additional requirement imposed by this Court in Commonwealth v. Friend, 

896 A.2d 607, 615 (Pa. Super. 2006)).