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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                   1    IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                          Appellee

                     v.

ORRIN WINSTON MCRAE,

                          Appellant                       No. 1023 EDA 2015


                    Appeal from the PCRA Order April 2, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0001580-2013


BEFORE:     SHOGAN, LAZARUS, and STABILE, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                        FILED MAY 05, 2017

        After careful review, I believe that the more prudent approach in this

case is to remand for     a   determination or clarification by the trial court of

whether appointed counsel abandoned Appellant in the post -sentencing and

direct -appeal process, rather than immediately reinstating Appellant's direct

appeal rights. Accordingly, I respectfully dissent.

        We have often expressed that the right to counsel is guaranteed by

the Sixth Amendment to the United States Constitution and by Article I,

Section Nine of the Pennsylvania Constitution.         Commonwealth v. Floyd,
937 A.2d 494, 501 (Pa. Super. 2007).                Pennsylvania Rule of Criminal

Procedure 122 addresses the appointment of counsel and provides, in

relevant part, as follows:
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        Rule 122. Appointment of Counsel

        (B) When counsel is appointed,

                                     * * *

              (2) the appointment shall be effective until final
             judgment, including any proceedings upon direct
             appeal.

Pa.R.Crim.P. 122.      In addition, the comment to Rule 122 provides the

following, in pertinent part:

             Pursuant to paragraph (B)(2), counsel retains his or
        her appointment until final judgment, which includes all
        avenues of appeal through the Supreme Court of
        Pennsylvania. In making the decision whether to file a petition
        for allowance of appeal, counsel must (1) consult with his or her
        client, and (2) review the standards set forth in Pa.R.A.P. 1114
        (Considerations Governing Allowance of Appeal) and the note
        following that rule. If the decision is made to file a petition,
        counsel must carry through with that decision.               See
        Commonwealth v. Liebe!, 573 Pa. 375, 825 A.2d 630 (2003).
        Concerning counsel's obligations as appointed counsel, see
        Jones v. Barnes, 463 U.S. 745 (1983).                 See also
        Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).
               See Commonwealth v. Alberta,601 Pa. 473, 974 A.2d
        1158 (2009), in which the Court stated that "[a]ppointed counsel
        who has complied with Anders [v. California, 386 U.S. 738
        (1967),] and is permitted to withdraw discharges the direct
        appeal obligations of counsel. Once counsel is granted leave to
        withdraw per Anders, a necessary consequence of that decision
        is that the right to appointed counsel is at an end."

Pa.R.Crim.P. 122 cmt. (emphasis added) (brackets in original). In addition,

we have strongly stated the following:

             We   remind and admonish all counsel, both privately
        retained and court appointed, that, once an appearance is
        entered, the attorney is responsible to diligently and
        competently represent the client until his or her appearance is

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        withdrawn. Rules of Professional Conduct 1.1 and 1.3. This
        responsibility includes filing an appeal when the client so
        requests. Counsel is also reminded that an appearance may be
        withdrawn only by leave of court. Pa.R.Crim.P. 120.

Commonwealth v. Librizzi, 810 A.2d 692, 693          (Pa. Super. 2002).

        My review of the certified record reflects that, at his preliminary

hearing on March 5, 2013, Appellant was represented by Attorney Taylor

Dunn.     Subsequently, on May 3, 2013, Attorney Marc        J.   DaFermo of the

Delaware County Public Defender's Officer entered his appearance on behalf

of Appellant, and he represented Appellant at    a   suppression hearing held on

August 7, 2013.       On October 8, 2013,   Attorney Dawn Sutphin, also of the

Delaware County Public Defender's Officer, entered her appearance on

behalf of Appellant.     The record reflects that Attorney Sutphin represented

Appellant at his guilty plea hearing and sentencing on February 4, 2014.

Moreover, Attorney Sutphin assisted Appellant in completing           a   detailed

written guilty plea colloquy.      Included with the written colloquy is an

extensive statement of post -sentence rights, which was appropriately

initialed and signed by both Appellant and Attorney Sutphin. As the Majority

correctly states:

        there     nothing in the record indicating that plea counsel
                 is
        consulted with [Appellant] regarding his post -sentence or
        appellate rights, other than what is stated in the standard
        language of the written guilty plea colloquy. See Guilty Plea
        Statement, Statement of Post -Sentence Rights, 2/4/14 ("I
        represent the Defendant in the above -captioned case. I have
        explained the Post -Sentence Rights contained in this document
        to [Appellant,] and I am satisfied that [Appellant] understands
        these rights.").

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Commonwealth v. McRea, Majority Memorandum at                 4.

       The trial court docket reflects that no further action occurred in this

matter until three months later, when, on May 8, 2014, Appellant filed the

instant pro se PCRA petition and requested the appointment of counsel. In

the PCRA petition, Appellant made      a    bald allegation of "ineffective counsel."

PCRA Petition,   5/8/14, at   3.   On May 19, 2014, the PCRA court appointed

Attorney Henry DiBenedetto Forrest to represent Appellant for purposes of

the PCRA petition and instructed counsel to file an amended PCRA petition

within sixty days.   However, on September 25, 2014, Attorney Forrest filed

an application to withdraw his appearance and a no -merit letter.             In his no -

merit letter, Attorney Forrest addressed various allegations of plea counsel's

ineffective assistance but did        not      address whether Attorney         Sutphin

abandoned Appellant following sentencing.             On September 25, 2014, the

PCRA   court entered an order granting counsel permission to withdraw and

also entered an order giving Appellant Pa.R.Crim.P. 907 notice of its intent

to dismiss the PCRA petition without       a   hearing. Ultimately, on April 2, 2015,

the PCRA court entered an order dismissing the PCRA petition, and this

timely pro se appeal followed.

       While it appears that Attorney Sutphin may not have fulfilled her duty

as appointed counsel   throughout the direct appeal, and it        is   obvious that she

did not request to withdraw from representation, I believe the lack of

evidence in the certified record pertaining to counsel's action, or inaction,


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poses     a       problem   because   we   are   not   a   fact-finding   court.    See

Commonwealth v. Grant, 813 A.2d 726, 734                     (Pa. 2002) (noting     that

appellate courts do not act as fact finders); Commonwealth v. Grundza,

819 A.2d 66, 68 (Pa. Super. 2003) (appellate court does not in first instance

make findings of fact) (citation and quotation marks omitted).              Indeed, this

issue was not articulated in Appellant's pro se PCRA petition or in Attorney

Forrest's no -merit letter so that the PCRA court could adequately address the

concern of abandonment.          Hence, I would remand this matter to the PCRA

court for     a   determination of whether appointed counsel abandoned Appellant

in   the post -sentencing and direct appeal process. See Librizzi, 810 A.2d at

693 (remanding of pro se appeal for determination of the appellant's

representation).




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