J-S32014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MELVIN JACKSON                             :
                                               :
                       Appellant               :   No. 831 EDA 2018

                 Appeal from the PCRA Order February 27, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004208-2010


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                             FILED OCTOBER 08, 2019

       Appellant, Melvin Jackson, appeals pro se from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We vacate and remand.

       On January 20, 2009, Appellant and his accomplice, Isaiah Lassiter,

robbed and murdered Dwayne Canty. On April 13, 2010, the Commonwealth

filed an information charging Appellant with one count each of first-degree

murder, robbery, criminal conspiracy, possession of an instrument of a crime

(“PIC”), firearms not to be carried without a license and carrying firearms in

public in Philadelphia.1 On March 16, 2011, Appellant proceeded to a jury

trial. On March 25, 2011, the jury found Appellant guilty of one count each of

____________________________________________


1 18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), 903(a), 907(a), 6106(a)(1), and
6108, respectively.
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first-degree murder, robbery, criminal conspiracy, and PIC. The two firearms

offenses were nol prossed. That same day, the trial court sentenced Appellant

to serve a term of life without parole for first-degree murder and a consecutive

term of incarceration of ten to twenty years of for the robbery conviction. The

trial court further sentenced Appellant to serve concurrent terms of

incarceration of ten to twenty years for the conspiracy charge and two and

one-half to five years for PIC.

      On March 30, 2011, Appellant filed a timely post-sentence motion, which

was denied on April 5, 2011. Appellant did not file a direct appeal.

      On May 20, 2011, Appellant filed a second post-sentence motion in

which counsel conceded his own ineffective assistance for not timely filing

Appellant’s notice of appeal due to a clerical error.   The court treated the

motion as a timely first PCRA petition and ordered the appointment of new

counsel.   Ultimately, on August 29, 2014, the court entered an order

reinstating Appellant’s direct appeal rights nunc pro tunc, and on September

26, 2014, Appellant filed a timely notice of appeal. On October 14, 2015, this

Court affirmed Appellant’s judgment of sentence.          Commonwealth v.

Jackson, 134 A.3d 95, 2804 EDA 2014 (Pa. Super. filed October 14, 2015)

(unpublished memorandum).

      On March 9, 2016, Appellant timely filed the instant PCRA petition, pro

se. The PCRA court appointed counsel, who filed a Turner/Finley no-merit




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letter2 and motion to withdraw on October 23, 2017. On February 7, 2018,

the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s PCRA petition without a hearing. The PCRA court dismissed the

PCRA petition and granted counsel permission to withdraw on February 27,

2018. This timely appeal followed.

       Appellant presents the following issue for our review:

       1. Was the dismissal of Appellant’s PCRA petition without a
       hearing in violation of Pa.R.Crim.P. 907[?]

Appellant’s Brief at 4 (full capitalization omitted).

       Appellant argues that his PCRA petition was erroneously dismissed.

Appellant’s Brief at 7-8. Appellant asserts that he did not receive appointed

counsel’s Turner/Finley letter prior to the dismissal of the PCRA petition, but

he did receive the document after he filed his appeal in this matter. Id. at 7.

In addition, Appellant avers that he did not receive the PCRA court’s Rule 907

notice. Id. at 8. Thus, Appellant concludes that, due to these anomalies,

“Appellant was prejudiced and deprived of his opportunity to respond to a

notice of intent to dismiss.” Id.

       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.



____________________________________________


2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).   This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

      Pennsylvania Rule of Criminal Procedure 907 provides, in pertinent part,

as follows:

      the judge shall promptly review the [PCRA] petition, any answer
      by the attorney for the Commonwealth, and other matters of
      record relating to the defendant’s claim(s). If the judge is satisfied
      from this review that there are no genuine issues concerning any
      material fact and that the defendant is not entitled to
      postconviction collateral relief, and no purpose would be served
      by any further proceedings, the judge shall give notice to the
      parties of the intention to dismiss the petition and shall state in
      the notice the reasons for the dismissal. The defendant may
      respond to the proposed dismissal within 20 days of the date of
      the notice.     The judge thereafter shall order the petition
      dismissed, grant leave to file an amended petition, or direct that
      the proceedings continue.

Pa.R.Crim.P. 907(1). It is well settled that a PCRA court’s compliance with

this rule is mandatory. See Commonwealth v. Feighery, 661 A.2d 437,

439 (Pa. Super. 1995) (“It is, of course, clear that the notice requirement of

the intention to dismiss, is mandatory (‘the judge shall (give notice and) shall

state (the reasons)’”) (emphasis in original).


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      In Commonwealth v. Bond, 630 A.2d 1281 (Pa. Super. 1993),

however, we concluded that an exception to the Rule 907 notice requirement

exists where appointed counsel informed the petitioner that the petition was

meritless, notified the petitioner of his intent to withdraw his representation

pursuant to Turner and Finley, and the PCRA court dismissed the petition

following an independent review of the record. In doing so, we observed that

“even if the [PCRA c]ourt erred in its failure to strictly comply with [the notice

requirement], Bond suffered no prejudice [because he knew] of counsel’s

intention to withdraw [and] was . . . advised of his appellate rights and his

opportunity to pursue an appeal pro se or with privately retained counsel.”

Bond, 630 A.2d at 1283.

      In Feighery, we distinguished the Bond exception. Noting that Rule

907(1) is mandatory, the Feighery Court concluded that the withdrawal

procedure in that case did not provide notice of the PCRA court’s intent to

dismiss the petition without a hearing. We observed that appointed counsel’s

no-merit letter failed to disclose the possibility that the petition could be

dismissed without notice if the petitioner failed to respond. Further, there was

no evidence of correspondence from counsel to the petitioner explaining that

the petition was meritless, and, except for counsel’s stated intention to

forward a copy of the no-merit letter to the petitioner, there was no indication

that the petitioner received a copy. Feighery, 661 A.2d at 439. Hence, we

concluded that the withdrawal procedure did not provide notice of the PCRA


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court’s intention to dismiss the petition without a hearing, and we vacated the

order dismissing the petition.

      Similarly, in Commonwealth v. Hopfer, 965 A.2d 270 (Pa. Super.

2009), the PCRA court dismissed a PCRA petition without a hearing and

without Rule 907 notice after counsel was permitted to withdraw pursuant to

Turner /Finley. Like in Feighery, we found the circumstances in Hopfer

different from those in Bond. Unlike counsel’s extensive communication with

Bond, in Hopfer, counsel informed Hopfer that he found the petition to be

meritless, but specifically noted that his decision was based upon his

investigation “at this point,” indicating that further review was forthcoming.

Hopfer, 965 A.2d at 276-275. Counsel then told Hopfer that he was going to

order the relevant transcripts and investigate the claims further. Without any

further communication, counsel proceeded to file a Turner/Finley letter, in

which counsel asserted that Hopfer’s claims lacked merit, even though the

letter was filed before counsel had ordered the transcripts that were necessary

to evaluate the claims. Id. at 275. Finally, we noted that Hopfer did not have

a chance to respond to counsel’s letter because the PCRA court granted

counsel’s motion to withdraw as counsel and dismissed the PCRA petition

without a hearing and without notice immediately upon receiving counsel’s

letter and motion. Unlike in Bond, we held that Hopfer was deprived of the

opportunity to respond both to counsel’s actions and the PCRA court’s intent

to dismiss the petition.   We held that “service of any notice of dismissal,


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whether in the form of a Rule 907 notice by the court or a Turner/Finley no-

merit letter, must occur at least twenty days prior to an official dismissal

order.” Id.

      Here, the PCRA court has asked that we remand this matter stating,

“This [c]ourt respectfully requests the Superior Court to remand the appeal

back to the PCRA [c]ourt to serve proper notice.”         PCRA Court Opinion,

7/11/18, at 3. The instant PCRA court observed the following:

      Although, the [c]ourt did mail the notice to Appellant on February
      7, 2018, it was returned to the [c]ourt due to an incorrect inmate
      number. See PCRA Court’s letter to Appellant pursuant to Rule
      907, attached hereto as “Exhibit A.” The letter was not returned
      from the post office until March 2, 2018, which was after the
      petition was dismissed on February 27, 2018. See Exh. A.

             Further, Appellant contends that he also did not receive
      notice from his PCRA attorney of the intent to request his petition’s
      dismissal. However, this [c]ourt received PCRA counsel’s Finley
      letter on October 23, 2017. See Attorney David Rudenstein’s
      Finley Letter, attached hereto as “Exhibit B.” On the last page of
      the letter, Appellant is carbon copied as a recipient. See Exh. B.
      This [c]ourt reached out to [PCRA counsel] through court staff and
      was informed that the letter was never returned in the mail.
      However, because there is no proof of receipt, this [c]ourt is more
      than willing to remedy the situation by serving the proper notice
      to Appellant.

Id.   In addition, the Commonwealth has stated, “In light of these

circumstances, the Commonwealth does not oppose a limited remand to

provide [Appellant] an opportunity to respond to the Rule 907 notice.”

Commonwealth’s Brief at 10.

      Pursuant to the authority cited above and the conclusions of both the

PCRA court and the Commonwealth, it is our determination that a remand is

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in order to provide Appellant with an opportunity to respond to the PCRA

court’s notice of intent to dismiss. Accordingly, we vacate the order dismissing

Appellant’s PCRA petition and remand the case for fulfillment of the notice

requirement pursuant to Rule 907(1).

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/19




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