Com. v. Thoman, S. (memorandum)

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J-A10042-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee v. SHANNON LAMAR THOMAN Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 937 MDA 2021 Appeal from the PCRA Order Entered June 18, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003498-2014 BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J. MEMORANDUM BY KING, J.: FILED AUGUST 24, 2022 Appellant, Shannon Lamar Thoman, appeals from the order entered in the York County Court of Common Pleas, which denied his petition pursuant to the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. We affirm and grant counsel’s petition to withdraw. The relevant facts and procedural history of this case are as follows. On November 4, 2015, a jury convicted Appellant of seven counts of Possession of Child Pornography.1 The court sentenced Appellant on February 3, 2016, to 11½ to 23 months of incarceration followed by six years of probation. This Court affirmed Appellant’s judgment of sentence on January 28, 2019, and our Supreme Court denied allowance of appeal on July 26, 2019. ____________________________________________ 1 18 Pa.C.S.A. § 6312(d). See J-A10042-22 Commonwealth v. Thoman, No. 994 MDA 2017 (Pa.Super. Jan. 28, 2019) (unpublished memorandum), appeal denied, 654 Pa. 582, 216 A.3d 1036 (2019). Appellant timely filed a PCRA petition on October 23, 2020. In it, Appellant argued that trial counsel was ineffective for failing to preserve a Batson2 challenge where his jury consisted of only women, which led to waiver of that claim on direct appeal. The court held a PCRA hearing on June 18, 2021, at which trial counsel and the prosecutor involved in Appellant’s case testified. At the PCRA hearing, the prosecutor utilized her notes from voir dire and testified to her reasons for striking venire members. At the conclusion of the hearing, the court denied PCRA relief. Appellant timely filed a notice of appeal on July 15, 2021. On July 19, 2021, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Following a change of counsel and the grant of an extension, Appellant filed his concise statement on October 26, 2021. As a preliminary matter, appellate counsel has filed a motion to withdraw in this Court and a Turner/Finley brief.3 Before counsel can be ____________________________________________ See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding prosecutor’s challenge to potential jurors solely on basis of race violated Equal Protection Clause of U.S. Constitution). 2 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 3 -2- J-A10042-22 permitted to withdraw from representing a petitioner under the PCRA, Pennsylvania law requires counsel to file a “no-merit” brief or letter pursuant to Turner and Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003). [C]ounsel must…submit a “no-merit” letter to the [PCRA] 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 the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel must also send to the petitioner a copy of the “no-merit” letter or brief and motion to withdraw and advise petitioner of his right to proceed pro se or with privately retained counsel. Id. “Substantial compliance with these requirements will satisfy the criteria.” Karanicolas, supra at 947. Instantly, appellate counsel filed a motion to withdraw as counsel and a Turner/Finley brief detailing the nature of counsel’s review and explaining why Appellant’s issues lack merit. Counsel’s brief also demonstrates he reviewed the certified record and found no meritorious issues for appeal. Counsel notified Appellant of counsel’s request to withdraw and advised Appellant regarding his rights. Thus, counsel substantially complied with the Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra. Counsel raises the following issue on Appellant’s behalf: Whether the [PCRA] Court erred in denying Appellant’s Motion for Post-Conviction Collateral Relief based upon trial counsel’s ineffectiveness for failing to object to the -3- J-A10042-22 prosecution’s use of all preemptory challenges to remove men from the jury as gender bias jury selection discrimination in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and Article I, Section 1, of the Constitution of the Commonwealth of Pennsylvania? (Turner/Finley Brief at 2) (unpaginated).4 Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court’s determination and whether the court’s decision is free of legal error. Commonwealth v. Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction court’s credibility determination, it is binding on the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011). After a thorough review of the record, counsel’s brief, the applicable law, and the well-reasoned opinion of the Honorable Gregory M. Snyder, we conclude Appellant’s issue merits no relief. The PCRA Court Opinion comprehensively discusses and properly disposes of the question presented. (See PCRA Court Opinion, 11/30/21, at 2-12). ____________________________________________ Appellant has not filed a responsive brief pro se or with newly retained private counsel. 4 -4- J-A10042-22 Specifically, the court noted that at the PCRA hearing the prosecutor testified regarding her rationale when striking venirepersons. (See id. at 5). The court highlighted that the prosecutor’s testimony and notes from voir dire reflected that she had gender-neutral reasons for striking venire members. (Id. at 5-8). The PCRA court found the prosecutor’s testimony credible. (Id. at 12). Consequently, the court decided trial counsel was not ineffective for failing to raise a Batson objection because Appellant could not prove the prosecutor had engaged in gender discrimination. (Id. at 12). Our review of the record confirms the trial court’s findings. See Ford, supra. Thus, we affirm the denial of PCRA relief based on the PCRA court opinion, which we adopt and incorporate herein. Following our independent review of the record, we agree with counsel that the appeal is frivolous. Accordingly, we affirm and grant counsel’s petition to withdraw. Order affirmed. Petition to withdraw is granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 08/24/2022 -5- Circulated 07/27/2022 10:45 AM I M P O U N D E D* i ub j ", yJ @° J A o M'. B T A C H* p'rii N Defendant-Name: ii ya Yil Shannon Lamar Thoman A P P E A L* Case Number OTN: T 463138-4 C Serviced TO: BY: Mail P— 6 7— CERT Inter- Hand Mail OKce DEL C R— F,vc O O O 3 4 9 8— 2 O 1 4* E- MAIL 0 RE- SCAN needed 1 1 Reason: 2. 3. 1 1 I 1 I 1 I 1 I 1 1 D n 3 N D m RETURN TO RECORDS UNIT ' I attest and certify that as Deputy Clerk of Courts I have properly Serviced and Docketetl the documents related to this case action and have verified the completeness and image quality of the scanned documents. Docketed in CPCMS ' Scanned Images OK - Verified / QC Dan Byrnes - C Signature or Stamp - Deputy Clerk of Courts York County Clerk of Courts L1 540291 Wednesday, October 20, 2021 01: 53: 34 PM

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