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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COU RT OF : PENNSYLVANIA Appellee :

: v. : : : GEORGE EDWARD CLARITT, : : Appellant : No. 875 WDA 2014

Appeal from the PCRA Order May 12, 2014 In the Court of Common Pleas of Warren County Criminal Division No(s).: CP-62-CR-0000390-2011 BEFORE: DONOHUE, MUNDY, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED MARCH 16, 2015 Appellant, George Edward Claritt, appeals from the order entered in the Warren County Court of Common Pleas denying, af ter an evidentiary hearing, his first Post Conviction Relief Act 1 (“PCRA”) petition. This case returns to us after we remanded to have Robert Kinn ear, Esq., comply with all the requirements of Turner / Finley 2 or file an advocate’s brief. Appellant’s counsel has filed a petition to withdra w. We grant counsel’s petition and affirm the order below.

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).J. S67042/14

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We adopt the facts and procedural history set forth in the PCRA court’s decision. See PCRA Ct. Op., 5/13/14, at 1-3. After an evidentia ry hearing at which Appellant and his trial counsel testified, the PCRA court denied Appellant’s petition on May 13, 2014. Appellant ti mely appealed. On May 28, 2014, the trial court ordered Appellant to file and serve on the court a Pa.R.A.P. 1925(b) statement within twen ty-one days. The docket does not reflect compliance with Pa.R.C.P. 2 36. 3 On June 16, 2014, Appellant filed a Rule 1925(b) statement but failed to serve a copy on the court. The PCRA court issued a Rule 1925(a) decisi on objecting to counsel’s failure to serve the Rule 1925(b) statement. Instantly, we ascertain whether Appellant complied with Pa.R.A.P. 1925(b)(1), which states in relevant part: “(1) Filing and service .— Appellant shall file of record the Statement and concurrently shall serve the judge. Filing of record and service on the judge s hall be in person or by mail . . . .” Pa.R.A.P. 1925(b)(1) (emphasis added). W e must also examine whether the PCRA court strictly complied with Pa.R. C.P. 236 when it ordered a Rule 1925(b) statement. See In re L.M. , 923 A.2d 505, 509-10 (Pa. Super. 2007) (holding, “strict application of the b right-line rule [of Rule 1925 waiver] necessitates strict interpretation of the r ules regarding notice of

3 We discuss this in further detail below.J. S67042/14

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Rule 1925(b) orders.” (citation omitted)); see also Pa.R.Crim.P. 114(B)- (C); Pa.R.A.P. 1925(b)(2). Rule 236 states in pertinent part: Rule 236. Notice by Prothonotary of Entry of Order or Judgment (a) The prothonotary shall immediately give written notice of the entry of * * * (2) any other order or judgment to each party’s attorney of record or, if unrepresented, to each pa rty. The notice shall include a copy of the order or judgment. (b) The prothonotary shall note in the docket the g iving of the notice and, when a judgment by confession is entered, the mailing of the required notice and doc uments. Pa.R.C.P. 236(a)(2), (b). Rule 236 mandates that t he prothonotary give “written notice of the entry of a court order to ea ch party and to note on the docket that notice was given.” Id. at 510 (emphasis added).

If the docket does not show that notice of the entry of a Rule 1925(b) order was provided to an appellant, then we will not conclude that the appellant’s issues have been waived for failure to file a Rule 1925(b) statement . That a party may have actually received notice is not determinative under circumstances where the docket does not reflect that notice was sent.
In re L.M. , 923 A.2d at 510 (emphases added and citations omi tted). In this case, Appellant’s counsel inexplicably failed to serve th e PCRA judge a copy of the Rule 1925(b) statement. See Pa.R.A.P. 1925(b). We decline to find waiver, however, as the docket fail ed to reflect notice of theJ. S67042/14

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entry of the order on Appellant. See In re L.M. , 923 A.2d at 510. Because counsel’s failure to comply with well-settled law d oes not result in waiver of Appellant’s issues on appeal, we return to the proc edural history. Previously, Appellant’s counsel filed a Turner / Finley brief with this Court without, inter alia , filing a petition to withdraw and complying with all the requirements of Turner / Finley . Appellant filed a pro se petition requesting, inter alia , a Grazier 4 hearing. This panel struck counsel’s brief, forwarded to counsel Appellant’s pro se petition per Commonwealth v.
Jette , 23 A.3d 1032, 1044 (Pa. 2011) (holding, “once the brief has been filed, any right to insist upon self-representation has expired”), and ordered counsel to, inter alia , comply with Turner / Finley

. Appellant’s counsel filed another petition to withd raw with this Court. Because counsel’s Turner / Finley petition was deficient, we denied his petition and remanded to have counsel file a proper petition or an advocate’s brief within thirty days. Appellant has again file d another Turner / Finley brief. Appellant’s counsel raises the following issue:

Is [Appellant’s] claim of ineffective assistance of counsel without merit? Appellant’s Turner

/ Finley Brief at 4.

4 Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).J. S67042/14

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Prior to addressing the issues raised in the Turner / Finley brief, we examine the following in evaluating counsel’s petit ion to withdraw:

[I]ndependent review of the record by competent cou nsel is required before withdrawal is permitted. Such independent review requires proof of: 1) A “no-merit” letter by PCRA counsel detailing th e nature and extent of his review; 2) The “no-merit” letter by PCRA counsel listing ea ch issue the petitioner wished to have reviewed; 3) The PCRA counsel’s “explanation”, in the “no-mer it” letter, of why the petitioner’s issues were meritle ss; 4) The PCRA court conducting its own independent re view of the record; and 5) The PCRA court agreeing with counsel that the pe tition was meritless. Commonwealth v. Widgins , 29 A.3d 816, 817-18 (Pa. Super. 2011) (alterations and citations omitted). Further, the Widgins Court explained:

The Supreme Court [in Commonwealth v. Pitts , 981 A.2d 875 (Pa. 2009),] did not expressly overrule th e additional requirement imposed by [ Commonwealth v. Friend , 896 A.2d 607 (Pa. Super. 2006),] decision, i.e. , that PCRA counsel seeking to withdraw contemporaneo usly forward to the petitioner a copy of the application to withdraw that includes (i) a copy of both the “no-m erit” letter, and (ii) a statement advising the PCRA peti tioner that, in the event the trial court grants the appli cation of counsel to withdraw, the petitioner has the right t o proceed pro se , or with the assistance of privately retained counsel.J. S67042/14

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Id. at 818. Instantly, we have reviewed counsel’s pet ition to withdraw and conclude it complies with the requirements set fort h by the Widgins Court. See id. Accordingly, we proceed. Appellant contends that on direct appeal, a claim s hould have been raised that trial counsel was ineffective during th e jury selection process. He asserts that counsel refused to cooperate with him during voir dire . We hold Appellant is not entitled to relief. “On appeal from the denial of PCRA relief, our stan dard and scope of review is limited to determining whether the PCRA c ourt’s findings are supported by the record and without legal error.” Commonwealth v. AbuJamal , 941 A.2d 1263, 1267 (Pa. 2008). Furthermore, whe re there is support for a PCRA court’s credibility determinatio ns, the reviewing court is bound by those determinations. Commonwealth v. Abu-Jamal , 720 A.2d 79, 93-94 (Pa. 1998). With respect to claims of counsel’s ineffectiveness , we state the following as background:

[C]ounsel is presumed to have provided effective representation unless the PCRA petitioner pleads an d proves that: (1) the underlying claim is of arguabl e merit; (2) counsel had no reasonable basis for his or her conduct; and (3) Appellant was prejudiced by counsel’s actio n or omission. To demonstrate prejudice, an appellant m ust prove that a reasonable probability of acquittal ex isted but for the action or omission of trial counsel. A cla im of ineffective assistance of counsel will fail if the petitioner does not meet any of the three prongs. Further, a PCRA petitioner must exhibit a concerted effort to devel op hisJ. S67042/14

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- ineffectiveness claim and may not rely on boilerpla te allegations of ineffectiveness. Commonwealth v. Perry , 959 A.2d 932, 936 (Pa. Super. 2008) (punctuation marks and citations omitted). In determining whether counsel’s action was reasona ble, the court does not consider “whether there were other more lo gical courses of action” counsel could have pursued, but simply examines whe ther counsel’s decision had any reasonable basis. Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007). Conversely, to merit relief, couns el’s action, given all the other available alternatives, must be “so unreasona ble that no competent lawyer would have chosen it.” Commonwealth v. Miller , 431 A.2d 233, 234 (Pa. 1981) (citation omitted). A failure to satisfy any prong of the test for inef fectiveness requires rejection of the claim. Washington , 927 A.2d at 594. “In the context of a PCRA proceeding, [the defendant] must establish tha t the ineffective assistance of counsel was of the type ‘which, in th e circumstances of the particular case, so undermined the truth-determinin g process that no reliable adjudication of guilt or innocence could h ave taken place.’” Id. (citations omitted). The defendant must establish actual prejudice, or demonstrate that the alleged act of ineffectiveness falls within a narrow range of circumstances in which there is a presumpt ion of prejudice. Commonwealth v. Reed , 971 A.2d 1216, 1224-25 (Pa. 2009).J. S67042/14

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After careful consideration of the record, the part ies’ briefs, and the decision of the Honorable Maureen A. Skerda, we aff irm on the basis of the PCRA court’s opinion. See App. A to PCRA Ct. Op., 5/13/14, at 7-8 (holding trial counsel’s testimony was more credible than Ap pellant’s testimony; trial counsel testified he informed Appellant of his righ ts and that Appellant did not communicate with counsel or attempt to particip ate in jury selection process). We have also conducted our own independe nt review of the record and discern no meritorious issues. See Widgins , 29 A.3d at 818. Consequently, having discerned no legal error, we g rant counsel’s petition to withdraw and affirm the order below. See Abu-Jamal , 941 A.2d at 1267; Perry , 959 A.2d at 936. Petition to withdraw granted. Order affirmed. Judge Donohue joins the memorandum. Judge Mundy concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 3/16/2015