J-S15007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER LEE REAMS                      :
                                               :
                       Appellant               :   No. 1014 WDA 2019

              Appeal from the PCRA Order Entered May 10, 2019
     In the Court of Common Pleas of Clearfield County Criminal Division at
                       No(s): CP-17-CR-0000822-2012

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER LEE REAMS                      :
                                               :
                       Appellant               :   No. 1015 WDA 2019

              Appeal from the PCRA Order Entered May 10, 2019
     In the Court of Common Pleas of Clearfield County Criminal Division at
                       No(s): CP-17-CR-0000824-2012


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 1, 2020

        Appellant, Christopher Lee Reams, appeals pro se from the May 10,

2019 order denying his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546, in each of his two underlying cases.1 After
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1This Court sua sponte consolidated Appellant’s appeals by per curiam order
entered July 31, 2019.
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careful review, we vacate the court’s order and remand for further proceedings

consistent with this memorandum.

      On February 7, 2013, Appellant pled guilty to rape of a child and related

offenses, based on his sexual abuse of two victims, an eight-year-old boy and

a five-year-old girl. Before his sentencing hearing, Appellant filed a motion to

withdraw his plea, which the court denied. He was sentenced on September

5, 2013, to an aggregate term of 20 to 40 years’ incarceration. This Court

affirmed Appellant’s judgment of sentence on direct appeal. Commonwealth

v. Reams, 2015 WL 6460301 (Pa. Super. filed Oct. 6, 2015) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal with

our Supreme Court.

      On September 19, 2016, Appellant filed the timely, pro se PCRA petition

that underlies the present appeal. Therein, he asserted that he was innocent

of the charges to which he pled guilty; the police had coerced him into

confessing to the crimes; his sentence was manifestly unreasonable; and he

had witnesses who could “confirm that the victim’s mother admitted that she

was mad at [Appellant,] thus proving a motive for bringing these allegations

against [him].”   Pro Se PCRA Petition, 9/19/16, at 3.      In regard to these

potential witnesses, Appellant stated that if a hearing were conducted, he

would call to the stand Danielle Huber and Dana McGarvey, who could offer

testimony establishing that the victim’s mother had a motive for falsely




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accusing Appellant of the crimes.2 Appellant also claimed that he would call

Bertha Reams and Erma Charney to offer testimony of Appellant’s good

character.

       Additionally in his petition, Appellant asserted that his trial counsel was

ineffective for permitting him to enter a plea that was unknowing,

unintelligent, and involuntary. Id. At a later point in the petition, he further

contended that his counsel was ineffective for coercing him to plead guilty, for

failing to argue that his sentence was excessive in light of mitigating evidence,

and that his counsel ineffectively “fail[ed] to investigate the facts of the case.”

Id. at 7.

       The PCRA court appointed J.D. Ryan, Esq., to represent Appellant in the

litigation of his petition. On August 2, 2017, Attorney Ryan filed a petition to

withdraw and a “no-merit letter” in accordance with Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). On August 25, 2017, the PCRA court issued

a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition.

Appellant thereafter filed a response, contending, inter alia, that his trial

counsel was ineffective for failing to investigate the four witnesses he named

in his pro se petition (Huber, McGarvey, Reams, and Charney).           Appellant

additionally averred that Attorney Ryan was ineffective “because, like trial
____________________________________________


2 Although there were two separate victims of Appellant’s crimes, he refers to
the victim singularly in his petition, and on appeal. It is not clear if this is a
typo, or if his claims pertain to only one of the victims. This distinction is not
dispositive of our analysis herein.

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counsel, he failed to fully investigate this case.” Pro Se Response, 11/6/17,

at 6 (unnumbered). Namely, Appellant explained that Attorney Ryan had not

spoken to the witnesses named in his petition to ascertain if trial counsel had

been ineffective for failing to contact them. Id.

       After Appellant filed his response, no action was taken by the PCRA court

for over a year. On May 8, 2019, Appellant filed a pro se “Motion for Issuance

of Final Orders and Request for Counsel to Surrender Appellant’s Entire Case

File[,]” asking, inter alia, that the court order Attorney Ryan to provide

Appellant with his “case file (to include all discovery and transcripts and other

documents related) … so that [Appellant] may fully appeal to the higher

courts.” Pro Se Motion, 5/8/19, at 3 (unnumbered). On May 10, 2019, the

PCRA court issued an order stating that the case had fallen “through the

proverbial ‘judicial cracks.’” Order, 5/10/19, at 1-2 (unnumbered). The order

then dismissed Appellant’s petition, granted Attorney Ryan’s petition to

withdraw, and denied Appellant’s request for the court to order Attorney Ryan

to send the case file to Appellant.

       Appellant filed timely, pro se notices of appeal in each of his two cases.3

He also complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)
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3 We note that Appellant’s notices of appeal were not time-stamped until June
19, 2019. However, the envelope in which his notice of appeal was mailed is
stamped with the date of June 10, 2019. Accordingly, pursuant to the prisoner
mailbox rule, Appellant’s pro se appeals are timely. See Commonwealth v.
Cooper, 710 A.2d 76, 78 (Pa. Super. 1998) (stating that the prisoner mailbox
rule means “that, for prisoners proceeding pro se, a notice is deemed filed as
of the date it is deposited in the prison mail system”).


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concise statement of errors complained of on appeal. The PCRA court filed its

Rule 1925(a) opinion on August 15, 2019.

       Herein, Appellant states one issue for our review: “Did the [PCRA c]ourt

err in [its] order o[f] May [10], 2019[,] dismissing Appellant’s PCRA [petition]

with prejudice?”      Appellant’s Brief at 1 (page unnumbered; unnecessary

capitalization omitted). However, in the Argument section of Appellant’s brief,

he raises several distinct sub-claims.4 For purposes of this appeal, we need

only discuss Appellant’s argument that his trial counsel — and his PCRA

counsel, Attorney Ryan — were both ineffective for not contacting the

witnesses listed in Appellant’s pro se PCRA petition.          See id. at 8-14.

Appellant explains:

       In this instant case, trial counsel, then PCRA counsel, failed to talk
       to key witnesses, Danielle Huber, Dana McGarvey, Bertha Reams,
       and Erma Charney. These witnesses could have testified that the
       victim’s mother had stated to … Appellant’s mother that she had
       threatened that if … Apellant [sic] ever broke up with her, she
       would tell the police that Appellant had “touched her daughter[.”]
       Danielle Huber and Dana McGarvey can testify that the victim’s
       mother, Penna Baker, admitted that she made allegations about
       … [Appellant] because she was mad at him, because he was
       engaged to Patricia Chucko[,] due to the fact that Ms. Baker and
       … Appellant used to date each other. The basis of Erma Cherney’s
       [sic] testimony can attest to the character of … [Appellant] and
       that there are other issues involved in this case. Bertha Reams
       can testify to the threat made by the victim’s mother, and the fact
       that Appellant has never faced allegations of any kind of
       wrongdoing with his own children. This is substantial evidence,
       that if trial counsel had investigated in the first place, he would
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4While we do not condone Appellant’s failure to set forth his sub-claims in his
Statement of the Questions Involved, that error does not inhibit our ability to
meaningfully review his issues.

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       have never agreed to, nor allowed Appellant to plead guilty to
       crimes he did not commit. A hearing should have been held by
       the [PCRA c]ourt to determine why trial counsel failed to
       investigate or interview Appellant’s witnesses to determine their
       usefulness at trial. [T]he failure to do so is ineffective assistance
       of counsel.

       [] PCRA counsel[, Attorney Ryan,] was ineffective because, like
       trial counsel, he failed to fully investigate this case. … Appellant’s
       witnesses were listed on Appellant’s [p]ro [s]e PCRA petition,
       however[, Attorney Ryan] failed to contact them to determine the
       requisite inquiries as to whether they were willing, able, and
       available to testify for … [A]ppellant. [Attorney Ryan] also failed
       to interview the witnesses to determine trial counsel’s
       ineffectiveness, and also determine whether such testimony was
       helpful to … Appellant.

       [Attorney Ryan] only filed for legal fees and filed a
       [Turner/]Finley letter. New counsel should [sic] be appointed
       with strict instructions to fully investigate the case, interview all
       witnesses and determine the ineffectiveness of trial and PCRA
       counsel.

Id. at 14-15.

       After carefully reviewing the record in this case, we must agree with

Appellant that Attorney Ryan acted ineffectively, at least by filing an

inadequate Turner/Finley no-merit letter.5 In Appellant’s pro se petition, he

set forth the names of his four prospective witnesses, and averred, generally,

that his trial counsel failed to investigate the facts of his case. Attorney Ryan,

however, made no mention of the witnesses in his Turner/Finley no-merit


____________________________________________


5 Appellant preserved his challenge to PCRA counsel’s ineffectiveness in his
response to the court’s Rule 907 notice. See Commonwealth v. Pitts, 981
A.2d 875, 880 n.4 (Pa. 2009) (finding that Pitts waived his challenge to PCRA
counsel’s ineffectiveness by failing to raise that claim in a response to the
court’s Rule 907 notice or counsel’s petition to withdraw).


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letter, and he did not discuss whether trial counsel had acted ineffectively by

not contacting or investigating those individuals.

       We also observe that in Appellant’s pro se response to the court’s Rule

907 notice, he more clearly raised his ineffectiveness claim, setting forth the

same argument he presents in his appellate brief, quoted above. Appellant

also contended that Attorney Ryan was ineffective for seeking to withdraw

without exploring this trial-counsel-ineffectiveness claim or contacting the

witnesses.     In light of Appellant’s response, the PCRA court should have

directed Attorney Ryan to evaluate the merits (or lack thereof) of Appellant’s

ineffectiveness issue premised on the four witnesses listed in his pro se

petition.    By instead dismissing Appellant’s PCRA petition, and granting

counsel’s petition to withdraw, the court effectively deprived Appellant of his

rule-based right to have counsel’s assistance in litigating all of the issues

presented in his first PCRA petition.          See Pa.R.Crim.P. 904(C) (“Except as

provided in paragraph (H), when an unrepresented defendant satisfies the

judge that the defendant is unable to afford or otherwise procure counsel, the

judge shall appoint counsel to represent the defendant on the defendant’s first

petition for post-conviction collateral relief.”).

       Accordingly, we must vacate the PCRA court’s order denying Appellant’s

petition and granting Attorney Ryan’s petition to withdraw.6        We remand for

____________________________________________


6Given this disposition, we need not address the other claims Appellant raises
on appeal. However, we note that, were we affirming the PCRA court’s order



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Attorney Ryan to again review Appellant’s pro se PCRA petition, as well as his

response to the court’s Rule 907 notice, and evaluate all of the claims raised

therein, including whether trial counsel acted ineffectively by not contacting

the witnesses listed by Appellant.             Counsel may then discern if any of

Appellant’s issues have arguable merit and, if so, seek leave to file an

amended PCRA petition on Appellant’s behalf. Alternatively, if counsel can

find no arguably meritorious claims, he may again seek to withdraw and file a

Turner/Finley no-merit letter addressing each of Appellant’s issues.

       Order vacated.         Case remanded for further proceedings.         The

Prothonotary of this Court is hereby ordered to return the record to the trial

court. Jurisdiction relinquished.




____________________________________________


permitting Attorney Ryan to withdraw and dismissing Appellant’s petition, we
would agree with Appellant that the court erred by not granting his motion to
order Attorney Ryan to provide Appellant with a copy of his case file. When
an attorney is permitted to withdraw, he/she should provide the client with
the case file, if so requested. See Pa.R.Prof.Conduct 1.4(a)(4) (stating that
a lawyer must “promptly comply with reasonable requests for information”
from his client); Pa.R.Prof.Conduct 1.16(d) (stating that, “[u]pon termination
of representation,” a lawyer must take “steps to the extent reasonably
practicable to protect a client’s interests, such as … surrendering papers and
property to which the client is entitled”). Here, we would discern no basis for
the court to deny Appellant’s request to order Attorney Ryan to provide him
with the case file. Nevertheless, given our decision to vacate the court’s order
permitting Attorney Ryan to withdraw, Appellant’s claim that the court erred
in this regard is moot.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2020




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