Com. v. Osei-Hwedieh, D.

J-S18038-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID OSEI-HWEDIEH : : Appellant : No. 1437 WDA 2023

Appeal from the PCRA Order Entered November 6, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005829-2022

BEFORE: PANELLA, P.J.E., McLAUGHLIN, J., and SULLIVAN, J. MEMORANDUM BY SULLIVAN, J.: FILED: September 19, 2024

David Osei-Hwedieh (“Osei-Hwedieh”) appeals from the order dismissing his petition pursuant to the Post Conviction Relief Act1 (“PCRA”). Osei-Hwedieh’s court-appointed PCRA counsel, Justin D. Okun, Esquire (“Counsel”) has filed a petition to withdraw from representation and a “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We affirm and grant Counsel’s petition to withdraw.

On a night in April 2022, Osei-Hwedieh broke the door to the house he periodically shared with his wife and minor children, injuring his wife in the process. See N.T. 12/12/22, at 12-26. Osei-Hwedieh recorded their continuing confrontation on his phone, despite the fact his wife was in her

underwear and objected. See id. at 26-27. After his phone fell from his hand, ____________________________________________

1 See 42 Pa.C.S.A. §§ 9541-9546.

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Osei-Hwedieh punched his wife between the ribcage and the sternum, inflicting pain that she continued to feel more than six months later. See id. at 27-36, 73, 90-92. Osei-Hwedieh’s wife took her children from the house and fled in her underclothes to a friend’s house. See id. at 37.

At a non-jury trial in December 2022, the court convicted Osei-Hwedieh of simple assault. That day, the court imposed a sentence of twelve months of non-reporting probation. See N.T., 12/12/22, at 154.

In February 2023, Osei-Hwedieh filed a pro se PCRA petition.2 The court appointed Counsel, who filed an amended petition in June 2023. The court dismissed the petition in November 2023. Osei-Hwedieh and the PCRA court complied with Pa.R.A.P. 1925. In this Court, Counsel has filed a motion to withdraw from representation and a “no-merit” letter pursuant to Turner/Finley.

Prior to addressing the merits of Osei-Hwedieh’s issue, we must address Counsel’s motion to withdraw. Pursuant to Turner/Finley, independent review of the record by competent counsel is required before withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts, 981 A.2d 875, ____________________________________________

2 Appellant apparently filed a PCRA petition rather than a direct appeal because he wanted to assert a claim of ineffective assistance of counsel and such claims will not be entertained on appeal even where an appellant receives a short sentence. See Commonwealth v. O’Berg, 880 A.2d 597, 602 (Pa. 2005).

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876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained that such independent review requires proof of:

1. A “no-merit” letter by PC[R]A counsel detailing the nature and extent of his review;

2. The “no-merit” letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;

3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter, of why the petitioner’s issues were meritless;

4. The PC[R]A court conducting its own independent review of the record; and

5. The PC[R]A court agreeing with counsel that the petition was meritless.

Id. (citation and brackets omitted). Further, PCRA counsel seeking to withdraw from representation in this Court must contemporaneously forward to the petitioner a copy of the petition to withdraw that includes a copy of: (1) the “no-merit” letter; and (2) a statement advising the PCRA petitioner that, upon the filing of counsel’s petition to withdraw, the petitioner has the immediate right to proceed pro se, or with the assistance of privately retained counsel. See Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super. 2016). When counsel submits an application to withdraw and a “no-merit” letter that satisfy the technical demands of Turner/Finley, this Court must then conduct its own review of the merits of the case. See Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). If this Court agrees with counsel that the claims are without merit, the Court will permit counsel to withdraw and deny relief. Id.

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Here, in his, Turner/Finley letter, Counsel described the extent of his review, identified the issues Osei-Hwedieh sought to raise, and explained why the issues merited no relief. In addition, Counsel provided Osei-Hwedieh with a letter notifying him of counsel’s intention to seek permission to withdraw from representation as well as a copy of the Turner/Finley “no-merit” letter and advised Osei-Hwedieh of his rights in lieu of representation. Thus, we conclude Counsel has substantially complied with the requirements necessary to withdraw as counsel. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003) (holding substantial compliance with requirements to withdraw as counsel will satisfy the Turner/Finley criteria). Counsel’s compliance permits us to proceed to the next stage of consideration of Osei-Hwedieh’s petition.

Our standard of review of an order dismissing a PCRA petition does not permit us to disturb a PCRA court’s ruling that is free of legal error. See Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). The PCRA plainly states that to be eligible for relief a petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A. §9543(a)(1)(i) (emphasis added). See also Commonwealth v. Tinsley, 200 A.3d 104, 107 (Pa. Super. 2018) (holding as soon as a petitioner completes his sentence, he is ineligible for PCRA relief, regardless of whether he was serving his sentence when he filed the petition).

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Counsel states Osei-Hwedieh is no longer serving a sentence and is thus ineligible for PCRA relief. See Counsel’s Turner/Finley Letter, 1/19/24, at 5 (unpaginated). The PCRA court found Osei-Hwedieh finished serving his oneyear probationary sentence on December 13, 2023, and is not eligible for PCRA relief. See Statement in Lieu of Opinion, 1/3/24.

The PCRA court correctly applied the law. Osei-Hwedieh is no longer serving a sentence and therefore is ineligible for PCRA relief. See 42 Pa.C.S.A. §9543(a)(1)(i); Tinsley, 200 A.3d at 107. On this basis, we affirm the PCRA court’s order dismissing Osei-Hwedieh’s petition.

Order affirmed. Petition to withdraw as counsel granted. DATE: 09/19/2024

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