J-S09018-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THUOL THACH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1822 EDA 2017

Appeal from the PCRA Order May 5, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0004526-2013

BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.: FILED MARCH 31, 2020

Thuol Thach appeals from the order, entered in the Court of Common 

Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel also 

seeks to withdraw his representation pursuant to Turner/Finley.

1

 Upon 

careful review, we affirm on the basis of the opinion authored by the Honorable 

Daniel J. Anders and grant counsel’s motion to withdraw. 

On December 6, 2013, Thach entered an open guilty plea to aggravated 

assault and conspiracy. The charges stemmed from an incident in which 

Thach and two co-conspirators brutally assaulted Chuong Danh during a party 

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* Retired Senior Judge assigned to the Superior Court.

1 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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at Thach’s residence. On February 6, 2014, the trial court sentenced Thach 

to an aggregate term of 31⁄2 to 7 years’ incarceration. Thach filed neither postsentence motions nor a direct appeal.

On July 1, 2014, Thach, acting pro se, filed a timely first PCRA petition. 

The PCRA court appointed counsel, who filed an amended petition alleging the 

ineffectiveness of plea counsel. On March 24, 2017, the PCRA court issued 

notice of its intent to dismiss Thach’s petition without a hearing pursuant to 

Pa.R.Crim.P. 907. Having received no response from Thach, the court issued 

an order denying relief on May 5, 2017. This timely appeal follows, in which 

Thach raises the following claims for our review:

Thach’s guilty plea was not knowing, intelligent and voluntary 

where trial counsel failed to properly investigate the case, as well 

as Thach’s background, and failed to subpoena a known and 

available witness, Sokchea Chum, to testify as an alibi witness. 

See Brief of Appellant, at 5 (claims combined and reworded). 

Prior to reviewing the merits of Thach’s claim, we must address 

counsel’s motion to withdraw. Where counsel seeks to withdraw from PCRA 

representation, our Supreme Court has stated that independent review of the 

record by competent counsel is required before withdrawal is permitted. Such 

independent review requires proof of: (1) a “no-merit” letter by PCRA counsel 

detailing the nature and extent of his review; (2) a “no-merit” letter by PCRA 

counsel listing each issue the petitioner wished to have reviewed; (3) PCRA 

counsel’s explanation, in the “no-merit” letter, as to why the petitioner’s issues 

are meritless; (4) independent review of the record by the PCRA or appellate 
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court; and (5) agreement by the PCRA or appellate court that the petition 

was meritless. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009); 

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).

Where counsel petitions to withdraw as appellate counsel in this Court, 

counsel must contemporaneously forward to the petitioner a copy of the 

application to withdraw, which must include (i) a copy of both the “no-merit” 

letter, and (ii) a statement advising the PCRA petitioner that, upon the filing 

of counsel's petition to withdraw, the petitioner-appellant has the immediate 

right to proceed in the appeal pro se or through privately-retained counsel. 

Commonwealth v. Muzzy, 141 A.3d 509, 512 (Pa. Super. 2016)

Here, counsel has substantially complied with the Turner/Finley and 

Friend requirements. Counsel has detailed the nature and extent of his 

review, served a copy of his petition to withdraw and brief upon Thach and 

informed him of his right to proceed pro se or with privately retained counsel,2

raised Thach’s issue in the form of “no-merit” letter addressed to this Court, 

and explained why Thach’s claim is meritless. Counsel having substantially 

satisfied the procedural requirements for withdrawal, we now turn to an 

independent review of the record to determine whether his claim merits relief. 

This Court’s standard of review regarding an order dismissing a petition 

under the PCRA is whether the determination of the PCRA court is supported 

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2 Thach has not raised any additional issues, either pro se or through private 

counsel. 
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by evidence of record and is free of legal error. Commonwealth v. Burkett, 

5 A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted). In evaluating a 

PCRA court’s decision, our scope of review is limited to the findings of the

PCRA court and the evidence of record, viewed in the light most favorable to 

the prevailing party at the trial level. Id. The PCRA court’s credibility 

determinations are binding on this Court where the record supports those 

determinations. Commonwealth v. Widgins, 29 A.3d 816, 820 (Pa. Super. 

2011). 

In his PCRA petition and on appeal, Thach asserts that his plea was 

involuntary, as he felt “compelled” to enter a plea after counsel failed to 

properly investigate his case or subpoena an alibi witness. 

Thach’s claim asserts the ineffectiveness of plea counsel. “It is wellestablished that counsel is presumed effective, and to rebut that presumption, 

the PCRA petitioner must demonstrate that counsel’s performance was 

deficient and that such deficiency prejudiced him.” Commonwealth v. 

Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland v. Washington, 

466 U.S. 668, 687–91 (1984). To prove that counsel was ineffective, a 

petitioner must demonstrate that: (1) the underlying legal issue has arguable 

merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) he 

was prejudiced by counsel’s act or omission. Koehler, 36 A.3d at 132. Failure 

to prove any prong of this test will defeat an ineffectiveness claim. 

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). In order to 

invalidate a plea on the basis of ineffectiveness of counsel, a petitioner must 
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plead and prove that the ineffectiveness caused an involuntary or unknowing 

plea. Commonwealth v. D’Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 

2002). 

Moreover, to establish ineffectiveness of counsel based on failure to call 

a witness, a petitioner must show that: (1) the witness existed; (2) the 

witness was available to testify for the defense at trial; (3) counsel knew of, 

or should have known of, the existence of the witness; (4) the witness was 

willing to testify for the defense; and (5) the absence of the witness’ testimony 

was so prejudicial as to have denied the petitioner a fair trial. 

Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008). 

We have reviewed the record, transcripts, briefs and applicable case law 

and conclude that the opinion authored by Judge Anders correctly and 

thoroughly disposes of Thach’s claim. Specifically, Judge Anders properly 

found that: (1) Thach’s statements made in his written and oral plea 

colloquies demonstrate that he understood the nature and consequences of 

his plea and that he was not induced or pressured to plead guilty, see PCRA 

Court Opinion, 9/13/17, at 6-7; (2) Thach failed to develop his claim, beyond 

boilerplate assertions, that trial counsel was ineffective for failing to 

investigate or “work-up” his case, see id. at 7-8; and (3) Thach failed to offer 

any evidence to establish that his alibi witness was available and willing to 

testify at trial, or demonstrate that she would testify contrary to the statement 

she made to police that she was sleeping during the time period the assault 

took place. See id. at 8-9. Accordingly, we affirm on the basis of Judge 
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Anders’ opinion and direct the parties to attach a copy of that document in the 

event of further proceedings.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/31/2020