J-S52001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    TIRELL WILLIAMS,

                             Appellant                 No. 431 MDA 2018


            Appeal from the PCRA Order Entered November 8, 2017
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0002010-2012


BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 16, 2018

        Appellant, Tirell Williams, appeals from the post-conviction court’s

November 8, 2017 order denying his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we vacate that order and remand for further proceedings.

        The facts underlying Appellant’s convictions are not pertinent to his

present appeal.       The PCRA court summarized the procedural history of

Appellant’s case, as follows:
              On October 24, 2013, [Appellant] … was found guilty by a
        jury of two counts of Robbery1, a felony of the first degree and a
        felony of the second degree2; one count of Theft by Unlawful
        Taking3, a misdemeanor of the first degree; and one count of
        Simple Assault4, a misdemeanor of the second degree[.]
        [Appellant] was found [n]ot [g]uilty of Criminal Conspiracy to
        Commit Robbery5, a felony of the first degree. [Appellant] was
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*   Retired Senior Judge assigned to the Superior Court.
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     initially represented by Nicole Ippolito, Esquire[,] at the
     preliminary hearing and [in litigating] pretrial motions[.] Julian
     Allatt, Esquire[, represented Appellant] at trial and on post[-
     ]sentence motions, and … Jeffrey Frankenburger, Esquire,
     [represented Appellant] on his direct appeal.
        1 18 Pa.C.S. § 3701(a)(1)(ii) (Robbery-threatens [serious
        bodily injury]). Count 1[.]
        2 18 Pa.C.S. § 3701(a)(1)(iv) (Robbery-inflicts/threatens
        [bodily injury]). Count 3.
        3   18 Pa.C.S. § 3921(a). … Count 4.
        4   18 Pa.C.S. § 2701(a)(1). Count 5.
        5   18 Pa.C.S. § 903(a)(1). Count 2.

           [Appellant] was sentenced by the [c]ourt on the charge of
     Robbery, felony of the first degree[,] to a split sentence. He was
     to undergo incarceration in a state correctional institution for an
     indeterminate period of time, the minimum of which shall be six
     (6) years, and the maximum of which shall be twelve (12) years,
     with consecutive eight years[’] probation under the supervision of
     the Pennsylvania Board of Probation and Parole.            Order of
     Sentence, 3/27/2017. [Appellant] filed Post Sentence Motions
     that were denied by this [c]ourt. [Appellant] appealed the
     Judgment of Sentence to the Superior Court of Pennsylvania. The
     Superior Court upheld the decision of this [c]ourt in an
     unpublished       memorandum       filed    March      20,    2015.
     [Commonwealth v. Williams, 120 A.3d 1060 (Pa. Super. 2015)
     (unpublished memorandum).]         No appeal was taken to the
     Supreme Court and thus[,] [Appellant’s] Judgment of Sentence
     became final on April 20, 2015. [Appellant] had one year from
     that date to file a PCRA petition.

            On April 15, 2016, [Appellant] filed a timely[,] pro se PCRA
     petition. Donald Martino, Esquire[,] was originally appointed to
     represent [Appellant]. On April 22, 2016, Jerry Lynch, Esquire[,]
     was appointed to represent [Appellant] for the PCRA petition.
     Attorney Lynch proceeded to request four continuances of
     [Appellant’s] initial[ly] scheduled PCRA conference, all of which
     were granted by the [c]ourt with no objection by the
     Commonwealth.

            In an Order filed December 30, 2016, [Appellant’s] PCRA
     petition was reassigned to Ryan C. Gardner, Esquire, as Attorney
     Lynch would no longer be serving in the role as conflict counsel

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       for the court. After a court conference on January 30, 2017,
       Attorney Gardner was ordered to file an Amended Petition or a
       Turner[/]Finley[1] letter within 30 days. Attorney Gardner filed
       a “First Amended Petition for Post Conviction Relief Pursuant to 42
       Pa.C.S.[] § 9501 et. seq.” on March 1, 2017. A court conference
       on the amended petition was scheduled for July 24, 2017. On that
       date, Attorney Gardner filed a Petition to Withdraw from
       Representation of PCRA and a Memorandum Pursuant to
       Turner/Finley.

PCRA Court Order and Opinion (PCO), 10/6/17, at 1-3.

       On October 6, 2017, the PCRA court issued an order and opinion in which

it agreed with Attorney Gardner that the issues Appellant raised on collateral

review were meritless. Accordingly, the court granted counsel’s petition to

withdraw.     Id. at 11.    The court also provided Pa.R.Crim.P. 907 notice to

Appellant of its intent to dismiss his PCRA petition, and directed that he could

file a response within 20 days. Id.

       On November 6, 2017, Appellant filed a pro se document entitled,

“Motion to Supplement Petitioner [sic] ‘Insufficient Evidence to Prove Theft By

Unlawful Taken [sic] and Robbery’ Claim.” On November 8, 2017, the PCRA

court issued an order stating that it was treating Appellant’s pro se filing as a

response to its Rule 907 notice. PCRA Court Order, 11/8/17, at 1. The court

stated that none of the issues raised in that document had merit. Id. It then

denied Appellant’s April 15, 2016 PCRA petition. Id.

       On March 6, 2018, Appellant’s pro se notice of appeal was docketed by

the Clerk of Courts of Lycoming County. Due to the facial untimeliness of that
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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appeal, this Court issued a per curiam order on June 13, 2018, directing

Appellant to show cause why his appeal should not be dismissed. Appellant

filed a response, stating that the trial court failed to docket his notice of appeal

when it was first received.     He attached a purported copy of his notice of

appeal that was dated November 20, 2017. He also attached correspondence

to the trial court, also dated November 20, 2017, in which he remarks that his

notice of appeal was included with that letter. That correspondence is included

in the certified record, but was not time-stamped or docketed.

      Based on Appellant’s response, our Court issued a per curiam order

discharging the rule to show cause, and referring the issue of the timeliness

of Appellant’s appeal to this panel. In light of the documents indicating that

Appellant mailed his notice of appeal on or before November 20, 2017, we will

consider his appeal timely pursuant to the ‘prisoner mailbox rule.’            See

Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super. 2007)

(“Pursuant to the prisoner mailbox rule, we deem a document filed on the day

it is placed in the hands of prison authorities for mailing.”). We also note that

Appellant timely complied with the PCRA court’s March 7, 2018 order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

      Herein, Appellant presents three issues for our review:

      1) Was Appellant denied his [Rule] 907(1) rights by the … PCRA
         court?

      2) Did the PCRA court commit an error when counsel was granted
         withdrawal, without addressing all the issues Appellant wanted
         to be raised, in counsel’s no-merit[] letter as required by
         Turner/Finley?

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        3) Did the PCRA counsel and court commit an error as a matter of
           law, when they averred that Appellant’s following issues did/do
           not have any merit?

          a) Insufficient evidence to prove theft/robbery            and
             counsel’s failure to properly raise it on appeal.

          b) Unlawful[ly] induced sentence by usage of juvenile
             record.

          c) Counsel’s failure to object and move for a[]new jury pool.

          d) Trial counsel’s failure to present evidence at trial.

          e) Trial counsel’s failure to question [the] Commonwealth’s
             witnesses about possible leniency.

          f) Conflict of interest/bias[] by trial judge.

          g) Brady[2] violation.

Appellant’s Brief at 5 (unnecessary capitalization omitted).

        In Appellant’s first two issues, he contends that he never received the

PCRA court’s Rule 907 notice, which also granted counsel’s petition to

withdraw. He additionally maintains that his PCRA counsel failed to address

all of the issues he wished to raise on collateral review and, therefore,

counsel’s petition to withdraw was deficient under Turner/Finley.

        The record supports Appellant’s contention that he did not receive the

court’s Rule 907 notice. In particular, at the end of the court’s order and

opinion granting counsel’s petition to withdraw and issuing notice to Appellant

of its intent to dismiss his petition, there are four individuals carbon copied

(including Attorney Gardner), but Appellant is not one of them. Additionally,

there is no certificate of service in the certified record demonstrating that

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2   Brady v. Maryland, 373 U.S. 83 (1963).

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Appellant received that Rule 907 notice, and there is also nothing on the

docket that would indicate the notice was mailed to Appellant.

       We also point out that the court’s November 8, 2017 order dismissing

Appellant’s petition stated that, “[a] copy of this order shall be mailed to

[Appellant] by certified mail return receipt requested[,]” and Appellant’s name

and address were included on the carbon copy list.        Order, 11/8/17, at 2.

After receiving the November 8, 2017 order, in which the court referred to the

October 6, 2017 Rule 907 notice, Appellant sent the November 20, 2017 pro

se correspondence to the court stating that he had not received the court’s

Rule 907 notice. This further demonstrates that the court’s November 8, 2017

order was the first time Appellant became aware of the October 6, 2017 Rule

907 notice.

       Based on this record, we accept Appellant’s claim that he did not receive

the court’s Rule 907 notice.3            The notice requirement of Rule 907 is

mandatory.      See Pa.R.Crim.P. 907(1) (“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 post-conviction collateral relief, and no

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3 We point out that Appellant raised, in his Rule 1925(b) statement, the fact
that he had not received the Rule 907 notice, yet the court offered no
comment on this claim in its Rule 1925(a) opinion. Instead, it simply relied
on the rationale set forth in its October 6, 2017 Order and Opinion to support
its decision to deny Appellant’s petition. See Order, 3/21/18, at 1. Therefore,
we have no input from the PCRA court that would cast doubt on Appellant’s
claim that he did not receive the Rule 907 notice.



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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 dismissal.”) (emphasis added); Commonwealth

v. Feighery, 661 A.2d 437, 439 (Pa. Super. 1995) (stating that the notice

requirement of Rule 907 is mandatory).

        Here, Appellant was clearly a party to which the court was required to

provide the Rule 907 notice, as the court had granted counsel’s petition to

withdraw in that same order. Additionally, it is apparent that Appellant desires

to challenge the adequacy of PCRA counsel’s Turner/Finley letter, and the

effectiveness of counsel’s representation as a whole. To preserve such claims

for this Court’s review, Appellant must raise them in response to “counsel’s

withdrawal letter and the notice of the PCRA court’s intent to dismiss his

petition pursuant to [Rule] 907[,]” so the PCRA court may rule on them in the

first instance. Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009).

        Consequently, the PCRA court’s failure to provide Appellant with a Rule

907 notice, and permit him to file a response, has clearly prejudiced Appellant.

Therefore, we vacate the court’s order denying Appellant’s petition, and

remand for further proceedings.4 We direct the PCRA court to serve a new

Rule 907 notice on Appellant, and permit him 20 days to respond, raising any

challenges to PCRA counsel’s Turner/Finley letter, claims of PCRA counsel’s




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4   In light of this disposition, we do not address Appellant’s remaining claims.

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ineffectiveness, and/or arguments regarding the merits of his underlying

issues.

      Order vacated. Case remanded for further proceedings.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




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