J-S63044-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA,

Appellee

v.

CHIHEAM JONES,

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 

 No. 3681 EDA 2018

Appeal from the PCRA Order Entered November 26, 2018

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0001930-2015

BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 17, 2020

Chiheam Jones (Appellant) appeals from the November 26, 2018 order 

which denied his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant’s counsel has filed a petition to 

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1 

Upon review, we affirm the order and grant counsel’s petition to withdraw.

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1 “Counsel filed a brief pursuant to Anders [], apparently in the mistaken 

belief that an Anders brief is required where counsel seeks to withdraw on 

appeal from the denial of PCRA relief.” Commonwealth v. Widgins, 29 

A.3d 816, 817 (Pa. Super. 2011). “A Turner/Finley no-merit letter, 

however, is the appropriate filing. See Commonwealth v. Turner, [] 544 

A.2d 927 ([Pa.] 1988); Commonwealth v. Finley, [] 550 A.2d 213 ([Pa. 

Super.] 1988) (en banc).” Id. “Because an Anders brief provides greater 

(Footnote Continued Next Page)
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We glean the following facts from the record. On March 3, 2015, the 

Commonwealth filed a criminal information against Appellant charging him 

with possession of marijuana and possession with intent to deliver (PWID) 

marijuana. On August 15, 2017, a jury found Appellant guilty of both 

charges. On October 25, 2017, Appellant was sentenced to three to six 

years of incarceration to be followed by four years of probation. Appellant 

timely filed a post-sentence motion challenging the discretionary aspects of 

his sentence. The trial court denied that motion on November 7, 2017. No 

direct appeal was filed.

On January 9, 2018, Appellant filed pro se a PCRA petition. Counsel 

was appointed, and an amended petition was filed claiming trial counsel was 

ineffective due to his failure to file a direct appeal on Appellant’s behalf. The 

PCRA court held a hearing on the petition on November 26, 2018. 

At that hearing, Appellant testified that on the “same day when [he] 

got found guilty,” he requested trial counsel file a direct appeal. N.T., 

11/26/2018, at 5. Appellant claimed that trial counsel confirmed with 

Appellant that counsel would file a direct appeal after sentencing. Id. at 6. 

In addition, Appellant testified that he sent counsel two letters requesting he 

file a direct appeal. Appellant stated that he kept copies of both letters, but 

left them in his jail cell. Id. at 9. In addition, Appellant testified that his 

(Footnote Continued) _______________________

protection to a defendant, this Court may accept an Anders brief in lieu of a 

Turner/Finley letter.” Id.
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sister, Latraya Jones, called counsel requesting a direct appeal.2 Id. at 10. 

Appellant stated that he also called counsel requesting a direct appeal. 

The Commonwealth called trial counsel to testify. It was trial counsel’s 

recollection that any communication he had with Appellant was regarding 

another matter in which he was representing Appellant. Trial counsel 

testified that he did not “recall being asked to file a notice of appeal during 

his phone calls” with Appellant. Id. at 13. In addition, trial counsel did not 

recall receiving any correspondence from Appellant requesting an appeal. 

Id. at 15. The only letter counsel had in his file from Appellant was from 

February 22, 2018, which was with regard to Appellant’s other case. Id. at 

20. 

At the close of the hearing, the PCRA court denied Appellant’s petition

on the record. Id. at 24. The PCRA court concluded that it found trial 

counsel’s testimony “to be credible” and concluded that Appellant had 

presented no credible support for his contention that he “wanted an appeal 

of this matter.”3 Id. 

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2 Appellant’s PCRA counsel stated that he subpoenaed Latraya Jones to 

testify, but the subpoena was never able to be served successfully. N.T., 

11/26/2018, at 10.

3 The PCRA court did not memorialize the oral order denying Appellant’s 

PCRA petition until December 27, 2018. See Order, 12/27/2018. Pursuant 

to Pennsylvania Rule of Appellate Procedure 301, an order is not appealable 

“until it has been entered upon the appropriate docket in the lower court.” 

Pa.R.A.P. 301(a)(1). Thus, at the time Appellant filed the instant notice of 

appeal, it was premature. However, because the PCRA court subsequently 

(Footnote Continued Next Page)
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Appellant timely filed a notice of appeal. The PCRA court did not order 

Appellant to file a concise statement of errors complained of on appeal, but 

filed an opinion addressing the issue raised at the hearing.

On appeal, Appellant’s counsel has filed both an Anders brief and a 

petition to withdraw as counsel, which we review pursuant to the standard 

required for a Turner/Finley no-merit letter. See Widgins, 29 A.3d at 817. 

Accordingly, the following principles guide our review of this matter.

Prior to addressing the merits of the appeal, we must review 

counsel’s compliance with the procedural requirements for 

withdrawing as counsel. We have explained:

Counsel petitioning to withdraw from PCRA representation 

must proceed ... under [Turner/Finley] and ... must review the 

case zealously. Turner/Finley counsel must then submit a “nomerit” letter to the trial court, or brief on appeal to this Court, 

detailing the nature and extent of counsel’s diligent review of the 

case, listing the issues which petitioner wants to have reviewed, 

explaining why and how those issues lack merit, and requesting 

permission to withdraw.

Counsel must also send to the petitioner: (1) a copy 

of the “no merit” letter/brief; (2) a copy of counsel’s 

petition to withdraw; and (3) a statement advising 

petitioner of the right to proceed pro se or by new 

counsel.

***

Where counsel submits a petition and no-merit letter 

that ... satisfy the technical demands of 

Turner/Finley, the court—[PCRA] court or this 

Court—must then conduct its own review of the 

(Footnote Continued) _______________________

entered the order on the docket, in the interest of judicial economy, we will 

consider this appeal. See Commonwealth v. Allen, 420 A.2d 653 (Pa. 

Super. 1980).
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merits of the case. If the court agrees with counsel 

that the claims are without merit, the court will 

permit counsel to withdraw and deny relief.

Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa. Super. 2016) (some 

internal citations omitted) (citing Commonwealth v. Doty, 48 A.3d 451, 

454 (Pa. Super. 2012) (internal citations omitted) (quoting Commonwealth 

v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007))).

Based upon our examination of counsel’s petition to withdraw and 

brief, we conclude that counsel has complied substantially with the technical 

requirements set forth above.4 “Thus, having concluded that counsel’s 

petition to withdraw is Turner/Finley compliant, we now undertake our own 

review of the case to consider whether the PCRA court erred in dismissing 

Appellant’s petition.” Doty, 48 A.3d at 454.

Here, Appellant alleges that trial counsel was ineffective for failing to 

file a direct appeal. Appellant’s Brief at 11-12. We review this issue mindful 

of the following. 

On appeal from the denial of PCRA relief, our standard of review 

calls for us to determine whether the ruling of the PCRA court is 

supported by the record and free of legal error. The PCRA court’s 

findings will not be disturbed unless there is no support for the 

findings in the certified record. The PCRA court’s factual 

determinations are entitled to deference, but its legal 

determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal 

citations and quotation marks omitted). “The scope of review is limited to 

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4 Appellant has not filed a response to counsel’s petition.
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the findings of the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the PCRA court level.” 

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). Moreover, “[i]t 

is well-settled that a PCRA court’s credibility determinations are binding 

upon an appellate court so long as they are supported by the record.” 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

“Our Supreme Court has held that counsel’s unexplained failure to file 

a requested direct appeal constitutes ineffective assistance per se, such that 

the petitioner is entitled to reinstatement of direct appeal rights nunc pro 

tunc without establishing prejudice.” Commonwealth v. Ousley, 21 A.3d 

1238, 1244 (Pa. Super. 2011). “However, before a court will find 

ineffectiveness of counsel for failing to file a direct appeal, the petitioner 

must prove that he requested a direct appeal and the counsel disregarded 

the request.” Id.

Instantly, at the PCRA hearing, Appellant testified that he and his 

sister, both verbally and in writing, requested trial counsel file a direct 

appeal. N.T., 11/26/2018, at 6-10. On the other hand, trial counsel 

testified that while he recalled conversations with Appellant related to his 

other case, he did not recall any conversations with Appellant about filing a 

direct appeal in this matter. Id. at 13-20. The PCRA court credited trial 

counsel’s testimony. “Just as with any other credibility determination, where 

the record supports the PCRA court’s credibility determinations, those 
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determinations are binding on this court.” Commonwealth v. Abu-Jamal, 

720 A.2d 79, 99 (Pa. 1998).

We conclude the record supports the PCRA court’s credibility 

determination. This was not a case where trial counsel testified that he had 

no recollection of Appellant’s case. Rather, trial counsel recalled specifically 

that he had been communicating with Appellant and his sister about another 

case, and at no point during those conversations did he recall a request for a 

direct appeal in the instant matter. Furthermore, trial counsel produced a 

letter from Appellant regarding his other case, which did not mention the 

instant matter. Accordingly, we decline to disturb the credibility 

determination of the PCRA court and conclude that Appellant did not satisfy 

his burden to establish that he requested trial counsel file a direct appeal.

Because our own review of the record confirms that Appellant’s claim 

is without merit, we affirm the order denying Appellant’s PCRA petition, and 

we grant PCRA counsel’s petition to withdraw.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/17/20