Opinion
No. 1651 MDA 2021
10-25-2022
COMMONWEALTH of Pennsylvania v. Jerone Andre MOORE, Appellant
MEMORANDUM BY McLAUGHLIN, J.:
Jerone Andre Moore appeals the order of the court denying his Post Conviction Relief Act ("PCRA") petition. See 42 Pa.C.S.A. §§ 9541 - 9546. Counsel for Moore has filed an Anders brief and a petition to withdraw as counsel. We deny the petition to withdraw.
Anders v. California , 386 U.S. 738 (1967) ; Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).
A jury convicted Moore of attempted murder and kidnapping. Relevant to this appeal, at trial, the Commonwealth admitted into evidence, over Moore's objection, a text message from Moore to his girlfriend. Moore sent the message from his phone one day after the kidnapping. The message read, "A lot of shit went down bae n its bad I need to leave [sic]." N.T., 2/21/17, at 488. Defense counsel objected that the message was not an admission in that Moore could have been "talking about something else." Id. at 485. He did not object to authentication. The court overruled the objection. Id.
18 Pa.C.S.A. §§ 901 and 2901(a)(3), respectively.
After conviction and sentencing, Jackson appealed to this Court, challenging, among other issues, the authentication of the text message. See Commonwealth v. Moore , No. 820 MDA 2017, 2018 WL 3800774, at *2 (Pa. Super. filed August 10, 2018). We rejected this claim as waived due to Moore's failure to include it in his Pa.R.A.P. 1925(b) statement. See id. We affirmed the judgment of sentence, and our Supreme Court denied allowance of appeal. See id. ; Commonwealth v. Moore , 203 A.3d 983 (Table) (Pa. filed March 11, 2019).
Moore then filed the instant, timely PCRA petition. The court appointed counsel, who filed an amended PCRA petition. The amended petition contended that trial counsel was ineffective for failing to preserve the challenge to the authentication of the text message. The court denied the petition, and this timely appeal followed.
Counsel's brief identifies one issue: "Whether the trial counsel was ineffective in failing to raise the issue of whether the trial court abused its discretion in allowing evidence of a text message from [Moore's] phone into the record." Anders Br. at 1.
When counsel seeks to withdraw on an appeal from the denial of PCRA relief, counsel should file a Turner/Finley letter or brief, not an Anders brief. See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) ; Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc ). However, we may accept an Anders brief in lieu of a Turner/Finley letter because an Anders brief offers broader protection. See Commonwealth v. Widgins , 29 A.3d 816, 817 n.2 (Pa. Super. 2011). If counsel has filed an Anders brief instead of a Turner/Finley brief, we analyze whether counsel's brief meets the standards of Turner/Finley .
A Turner/Finley brief must: (1) detail the nature and extent of counsel's review; (2) list each issue the petitioner wished to have reviewed; and (3) explain why the petitioner's issues were meritless. See Commonwealth v. Doty , 48 A.3d 451, 454 (Pa. Super. 2012) (citation omitted). "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." Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007). If counsel has substantially complied with these requirements, we conduct our own independent review to determine if the issues raised are in fact meritless. If they are, we grant counsel's petition to withdraw. Id.
See Commonwealth v. Karanicolas , 836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial compliance with Turner/Finley criteria is sufficient).
Here, counsel's brief stumbles at the first and third steps: it does not detail the nature and extent of counsel's review, and does not explain counsel's conclusion that Moore's ineffectiveness claim is meritless. Counsel nowhere in his brief sets forth anything about his review. As to an explanation of his conclusion, counsel offers us the conclusory statement that there was "no evidence" at the PCRA hearing "as to why this evidence should have been suppressed at trial." Turner/Finley Br. at 10. As the issue is ineffectiveness for failure to preserve a challenge to authentication, we need counsel to explain why that claim lacks merit.
Accordingly, we deny counsel's petition to withdraw and direct counsel to file either a compliant Turner/Finley brief and petition to withdraw, or an advocate's brief, within 30 days from the date of this Memorandum.
Petition to withdraw denied.