J-S29019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHARLES JACOB BERGER

                            Appellant                 No. 1173 WDA 2015


                    Appeal from the PCRA Order July 7, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000898-2008


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

JUDGMENT ORDER BY PANELLA, J.:                           FILED MAY 19, 2016

        Appellant’s counsel, James Eugene DePasquale, Esquire, has filed a

brief in this matter in which he concedes that Appellant cannot satisfactorily

establish his claim of ineffective assistance of trial counsel. Attorney

DePasquale is currently in the rather odd position of arguing against his

client’s interests. This cannot stand.

        Attorney DePasquale has not filed an “application for leave to withdraw

as counsel” pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d

927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988). In Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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2006), this Court clarified “the conditions precedent to an order of court

which terminates the representation of PCRA counsel[:]”

     1) As part of an application to withdraw as counsel, PCRA
     counsel must attach to the application a “no-merit” letter,

     2) PCRA counsel must, in the “no-merit” letter, list each claim
     the petitioner wishes to have reviewed, and detail the nature
     and extent of counsel’s review of the merits of each of those
     claims,

     3) PCRA counsel must set forth in the “no-merit” letter an
     explanation of why the petitioner’s issues are meritless,

     4) PCRA counsel must contemporaneously forward to the
     petitioner a copy of the application to withdraw, which must
     include (i) a copy of both the “no-merit” letter, and (ii) a
     statement advising the PCRA petitioner that, in the event the
     trial court grants the application of counsel to withdraw, the
     petitioner has the right to proceed pro se, or with the assistance
     of privately retained counsel;

     5) the court must conduct its own independent review of the
     record in the light of the PCRA petition and the issues set forth
     therein, as well as of the contents of the petition of PCRA
     counsel to withdraw; and

     6) the court must agree with counsel that the petition is
     meritless.

      If counsel wishes to file an application for leave to withdraw as

counsel, we advise counsel to file a no-merit letter which fully presents each

claim Berger wishes to pursue on appeal, including the appropriate

standards of review and legal authority in support of counsel’s contention

that these claims are without merit within 30 days; or, in the alternative,

counsel may file a proper brief on the merits. The Commonwealth shall




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thereafter have thirty days following the filing of Appellant’s brief in which to

file its response.

      Case remanded with instructions. Panel jurisdiction retained.




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