Com. v. Hernandez, J.

J-S17013-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JEROME J. HERNANDEZ :

:

Appellant : No. 1626 EDA 2021

Appeal from the PCRA Order Entered July 19, 2021

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

No(s): CP-51-CR-0010673-2016

BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY BOWES, J.: FILED JUNE 17, 2022

Jerome J. Hernandez appeals from the July 19, 2021 order denying his

petition pursuant to the Post-Conviction Relief Act (“PCRA”). Appellant’s

counsel, Matthew Sullivan, Esquire, has filed an application to withdraw along

with a brief styled pursuant to Anders v. California, 386 U.S. 738 (1967)

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

counsel’s application to withdraw and we affirm.

This Court has summarized the pertinent facts of this case, as follows:

On November 2, 2016, around 1:20 AM, Police Officer Todd

Walker received information through police radio that there was a

person with a gun at 208 West Olney Avenue, a row home

residence [located in Philadelphia, Pennsylvania]. Upon arriving

on site[,] Sergeant Thomas Brown met up with Officer Walker and

____________________________________________

1 As discussed further infra, withdrawal by counsel in PCRA appeals is properly

governed by Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

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

J-S17013-22

they spoke with [the complainant, Octavia Brown]. Ms. Brown

explained that she had been involved in a verbal dispute with

Appellant over a bullet dropping out of his pocket in front of her

granddaughter.

Prior to the date of the verbal dispute with Appellant, Ms. Brown

had found a silver gun in the ceiling of the home. Ms. Brown asked

her daughter why there was a gun in the house, since Ms. Brown

does not believe in guns and does not allow guns in her home.

Ms. Brown’s daughter told [her mother] that the gun belonged to

Appellant. Ms. Brown became upset and hid the gun so her [five]-

year-old granddaughter, Brianna, would not be able to grab it.

On November 2, 2016, Ms. Brown realized that Appellant had

another gun, in addition to the silver gun she had hidden, when a

bullet dropped from his pocket and Brianna picked it up to return

it to him. Ms. Brown noticed a black object, which she believed

to be a gun, in Appellant’s hooded sweatshirt (“hoodie”) when he

returned the fallen bullet to his hoodie pocket. Later that evening,

after Appellant had been drinking beer, Ms. Brown told him that

he needed to get the gun out of the house. Appellant responded

that he wasn’t going anywhere. Ms. Brown waited until Appellant

passed out from alcohol intoxication before she called the police.

Upon their arrival at her home, Ms. Brown informed Officer Walker

and Sergeant Brown that Appellant was drunk and in the

basement of the residence. Officer Walker proceeded to the

basement and saw a well-lit room towards the front of the

basement. He entered the room and saw Appellant laying on the

bed asleep. He also noticed a black handgun, a .357 Magnum

revolver, around 2 inches away from Appellant’s waist, on his left

side. After noticing the gun, Officer Walker proceeded to take the

gun and remove the bullets from it with his bare hands. He

secured the gun without gloves because he wanted to make it safe

immediately since he did not know whether Appellant was

dangerous. The use [by Officer Walker] of his bare hands

contaminated the gun, making it unable to be tested for prints or

DNA evidence.

While Officer Walker secured the handgun, Sergeant Brown woke

Appellant and proceeded to question him. Upon waking, Appellant

appeared to be in an intoxicated stupor. Once Appellant was

detained by Officer Walker, Sergeant Brown . . . discovered that

-2-

J-S17013-22

Appellant was ineligible to possess a firearm at the time of the

incident.

Commonwealth v. Hernandez, 222 A.3d 827 (Pa.Super. 2019)

(unpublished memorandum at 1) (cleaned up).

As a result of these events, Appellant was charged with person not to

possess firearms. Ultimately, a jury found Appellant guilty and the trial court

sentenced him to five to ten years of imprisonment. On direct appeal, this

Court affirmed Appellant’s judgment of sentence and the Pennsylvania

Supreme Court denied allowance of appeal. Id. (unpublished memorandum

at 5), appeal denied, 237 A.3d 392 (Pa. 2020). Appellant did not seek review

with the United States Supreme Court.

On August 24, 2020, Appellant filed a timely, pro se PCRA petition.

Mario D’Adamo III, Esquire, was appointed to represent Appellant and an

amended petition was filed raising the following claims for relief: (1) that the

trial court lacked “subject matter and in personam jurisdiction” over Appellant

due to a violation of the corpus delicti rule; (2) ineffective assistance due to

trial counsel’s failure to object to a “forged” bill of information; and (3) that

Appellant’s sentence violated the principles of double jeopardy.2 See

Amended PCRA Petition, 2/8/21, at 4-8 (unpaginated).

____________________________________________

2 As this Court has held, “[a]mended petitions are required on first-time PCRA

cases and the PCRA court is only permitted to address issues raised in a

counseled petition.” Commonwealth v. Markowitz, 32 A.3d 706, 713 n.5

(Pa.Super. 2011); see also Commonwealth v. Johnson, 179 A.3d 1153,

(Footnote Continued Next Page)

-3-

J-S17013-22

Initially, the PCRA court filed notice of its intent to dismiss Appellant’s

PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907, which

erroneously stated that Attorney D’Adamo was seeking to withdraw pursuant

to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

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

Notice, 5/25/21, at 1 (unpaginated). Thereafter, the PCRA court filed an

amended notice that seemed to clarify that it had determined Appellant’s

claims lacked merit. See Amended Notice, 6/9/21, at 1 (unpaginated). No

response to this notice was forthcoming. On July 19, 2021, the PCRA court

entered an order denying Appellant’s amended PCRA petition and granting the

Commonwealth’s motion to dismiss.

On August 3, 2021, Attorney Sullivan filed a timely notice of appeal on

Appellant’s behalf. The trial court filed an order directing Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). See Order, 8/10/21, at 1 (unpaginated). On August 24, 2021,

Attorney Sullivan filed notice of his intent to withdraw pursuant to Rule

1925(c)(4). See Pa.R.A.P. 1925(c)(4) (“If counsel intends to withdraw in a

criminal case . . . , counsel shall file of record and serve on the judge a

____________________________________________

1157 (Pa.Super. 2018) (holding that issues raised in an initial pro se PCRA

were not preserved “without any further explanation or elaboration upon the

legal validity of such claims”). Instantly, Attorney D’Adamo did not develop

or adopt any of the issues initially raised in Appellant’s pro se PCRA petition.

Accordingly, we will limit our review in this matter to the issues properly

preserved in Appellant’s amended PCRA petition. Id.

-4-

J-S17013-22

statement of intent to withdraw in lieu of filing a [concise statement of errors

complained of on appeal].”). Due to the filing of a Rule 1925(c)(4) notice, the

PCRA court elected not to file an opinion pursuant to Rule 1925(a). See

Response to Rule 1925(c)(4) Notice, 11/17/21, at 1 (citing Commonwealth

v. McBride, 957 A.2d 752, 758 (Pa.Super. 2008)). In this Court, Attorney

Sullivan has filed a brief and an application to withdraw as counsel styled

pursuant to Anders/Santiago.

At the outset of our review, we note that this case does not implicate

the Anders/Santiago paradigm. As this Court has observed, “[c]ounsel

petitioning to withdraw from PCRA representation must proceed not under

Anders but under [Turner/Finley].” Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa.Super. 2007). While these frameworks are “close cousins” there

are “significant differences” in the requirements of each standard. As a

general matter, Anders/Santiago provides greater safeguards:

Anders applies to direct appeals; Turner/Finley applies to PCRA

cases. Anders counsel is not permitted to withdraw unless the

appeal is wholly frivolous, but Turner/Finley counsel is permitted

to do so if the case lacks merit, even if it is not so anemic as to

be deemed wholly frivolous. Also, Anders counsel must not argue

against the client’s interests while Turner/Finley counsel must

do so, articulating why the client’s claims have no merit.

The heightened protection afforded to Anders appellants as

compared to Turner/Finley petitioners/appellants arises because

the right to counsel on direct appeal and the right to the direct

appeal itself are constitutional ones. By comparison, a first-time

PCRA petitioner’s right to counsel is born of rule, namely

Pa.R.Crim.P. 904(C), and that right does not spring from the

federal or state constitutions.

-5-

J-S17013-22

Wrecks, supra at 722 (cleaned up).

However, this Court has determined that we may accept

Anders/Santiago submissions instead of Turner/Finley filings under these

circumstances. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2

(Pa.Super. 2011) (“Because an Anders brief provides greater protection to a

defendant, this Court may accept an Anders brief in lieu of a Turner/Finley

letter.”). Accordingly, we will proceed to assess whether Attorney Sullivan’s

filings satisfy the technical requirements of Turner/Finley. See

Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa.Super. 2016) (“Prior to

addressing the merits of the appeal, we must review counsel’s compliance

with the procedural requirements for withdrawing as counsel.”).

Counsel seeking to withdraw from PCRA representation must:

(1) detail the nature and extent of counsel’s review of the case;

(2) list each issue the petitioner wishes to have reviewed; and (3)

explain counsel’s reasoning for concluding that the petitioner’s

issues are meritless. Counsel must also send a copy of the brief

to the petitioner, along with a copy of the petition to withdraw,

and inform the petitioner of the right to proceed pro se or to retain

new counsel. If the brief meets these requirements, we then

conduct an independent review of the petitioner’s issues.

Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa.Super. 2019). As noted

above, Attorney Sullivan has filed a brief and application to withdraw.

Attached to the application is a letter dated February 2, 2022, which is

addressed to Appellant and informs him that Attorney Sullivan has determined

that his appeal is frivolous and advising him of his rights to retain replacement

counsel, proceed pro se, and/or to raise any additional points with this Court

-6-

J-S17013-22

by filing a supplemental brief. See Application to Withdraw, 2/2/22, at Exhibit

1. This letter indicates that copies of the relevant documents were also

included in the mailing. The brief filed by Attorney Sullivan recites the factual

and procedural history of the case, while identifying and discussing all of the

issues raised in Appellant’s amended PCRA petition.

Based on the foregoing, we conclude that Attorney Sullivan has

complied with the procedural requirements of Turner/Finley. Therefore, we

will proceed with an independent review of the issues. As noted above, there

were four issues raised in Appellant’s amended PCRA petition: (1) the trial

court’s alleged lack of jurisdiction pursuant to corpus delicti; (2) trial counsel’s

failure to object to an allegedly defective bill of information; and (3) an alleged

violation of double jeopardy. See Amended PCRA Petition, 2/8/21, at 4-8

(unpaginated). We will consider these issues seriatim.

The first issue concerns the trial court’s jurisdiction and the rule of

corpus delicti. Id. at 4 (“[Appellant] also claims a lack of corpus delicti to

establish the jurisdiction of the trial court.”). This line of argument grossly

mischaracterizes the venerable concept of corpus delicti, which is principally

a rule of evidence as opposed to jurisdiction. See Commonwealth v.

Harper, 230 A.3d 1231, 1240 (Pa.Super. 2020) (“The corpus delicti rule

involves the admissibility of evidence[.]”). Specifically, the rule “places the

burden on the prosecution to establish that a crime has actually occurred

before a confession or admission of the accused connecting him to the crime

-7-

J-S17013-22

can be admitted.” Id. Reviewing the certified transcripts in this case, we can

find no confession or admission from Appellant that was advanced by the

Commonwealth at trial. See N.T. Trial I, 11/21/17, at 1-112. Consequently,

there is no issue concerning corpus delicti in this matter.

Moreover, this Court has previously held that corpus delicti is satisfied

in the context of gun ownership cases where testimony establishes the

existence of a firearm in a communal area of a home. See Commonwealth

v. Murray, 174 A.3d 1147, 1154 (Pa.Super. 2017). Thus, even if the rule of

corpus delicti were implicated in this case, it would not provide the grounds

for relief. Finally, it is well-established 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 (Pa. 2003); see also 42

Pa.C.S. § 931(a); 18 Pa.C.S. § 102. Thus, we agree this claim is meritless.

The second relevant claim discussed in Attorney Sullivan’s brief

concerns trial counsel’s failure to object to allegedly erroneous bills of

information. See Amended PCRA Petition, 2/8/21, at 6 (“[Appellant] is

entitled to an evidentiary hearing to establish that trial counsel failed to object

to the legality and propriety of the bills of information[.]”). Since this claim is

framed as one concerning effective assistance of counsel, Appellant must

satisfy the three-part inquiry that Pennsylvania courts have “refined” from

Strickland v. Washington, 466 U.S. 668 (1984) and Commonwealth v.

Pierce, 527 A.2d 973 (Pa. 1987) by showing that: (1) his underlying claim is

-8-

J-S17013-22

of arguable merit; (2) counsel had no reasonable basis for his action or

inaction; and (3) the petitioner suffered actual prejudice as a result.

Commonwealth v. Sarvey, 199 A.3d 436, 452 (Pa.Super. 2018). If a claim

fails under “any required element of the Strickland/Pierce test, the court

may dismiss the claim on that basis.” Id.

The content of bills of information is governed by Pennsylvania Rule of

Criminal Procedure 560 (“Information: Filing, Contents, Function), which

provides as follows with respect to the format and contents of this document:

(A) After the defendant has been held for court following a

preliminary hearing or an indictment, the attorney for the

Commonwealth shall proceed by preparing an information and

filing it with the court of common pleas.

(B) The information shall be signed by the attorney for the

Commonwealth and shall be valid and sufficient in law if it

contains:

(1) a caption showing that the prosecution is carried on in

the name of and by the authority of the Commonwealth of

Pennsylvania;

(2) the name of the defendant, or if the defendant is

unknown, a description of the defendant as nearly as may

be;

(3) the date when the offense is alleged to have been

committed if the precise date is known, and the day of the

week if it is an essential element of the offense charged,

provided that if the precise date is not known or if the

offense is a continuing one, an allegation that it was

committed on or about any date within the period fixed by

the statute of limitations shall be sufficient;

(4) the county where the offense is alleged to have been

committed;

-9-

J-S17013-22

(5) a plain and concise statement of the essential elements

of the offense substantially the same as or cognate to the

offense alleged in the complaint;

(6) a concluding statement that “all of which is against the

Act of Assembly and the peace and dignity of the

Commonwealth”; and

(7) a certification that the information complies with the

provisions of the Case Records Public Access Policy of the

Unified Judicial System of Pennsylvania regarding

confidential information and documents.

(C) The information shall contain the official or customary citation

of the statute and section thereof, or other provision of law that

the defendant is alleged therein to have violated; but the omission

of or error in such citation shall not affect the validity or sufficiency

of the information.

(D) In all court cases tried on an information, the issues at trial

shall be defined by such information.

Pa.R.Crim.P. 560(A)-(D).

In pertinent part, Appellant’s amended PCRA petition did not identify

any specific errors or omissions in the information filed by the Commonwealth

in this case. To the contrary, our review indicates that the instant information

comports with the requirements of Rule 560 in all relevant aspects. Compare

Information, 11/21/2016, at 1 with Pa.R.Crim.P. 560(A)-(D). Accordingly,

this claim of ineffectiveness lacks arguable merit under Strickland/Pierce

and, thus, we concur in Attorney Sullivan’s conclusion that it is meritless.

The third and final issue we review pertains to the principles of double

jeopardy embodied in the United States and Pennsylvania Constitutions. See

U.S. CONST., amend. V (“[S]tating no person shall “be subject for the same

- 10 -

J-S17013-22

offence to be twice put in jeopardy of life or limb”); PA. CONST., art. 1, § 10

(“[N]o person shall, for the same offense, be twice put in jeopardy of life or

limb[.]”). Specifically, Appellant’s amended PCRA petition baldly asserts that

the trial court violated these provisions by imposing a criminal sentence in this

matter. See Amended PCRA Petition, 2/8/21, at 4 (“[Appellant] further

asserts that his constitutional protection against double jeopardy was violated

by the sentenced [sic] imposed by the trial court.”).

It is entirely unclear upon what basis Appellant advanced this claim for

relief, as there is no evident violation of double jeopardy in this case. The

only possible issue in this matter seems to revolve around Appellant’s prior

conviction for person not to possess a firearm in 2003 in a completely different

set of circumstances. Attorney Sullivan’s explanation as to the lack of merit

of this claim is apt: “It goes without saying that [Appellant’s] separate

conviction for a completely distinct act, committed well over a decade before

the crime in this case, did not merge with his sentence for this current crime

simply because they happened to violate the same criminal statute.” Anders

brief at 10. Thus, we concur in counsel’s conclusion that this issue lacks merit.

Order affirmed. Petition to withdraw filed by Matthew Sullivan, Esquire,

granted.

- 11 -

J-S17013-22

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/17/2022

- 12 -