J-S86005-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
GEOFFREY HETHERINGTON                     :
                                          :
                   Appellant              :   No. 1482 WDA 2015

                 Appeal from the PCRA Order August 7, 2015
           In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0004009-2013,
                           CP-65-CR-0004012-2013



BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS*, P.J.E.

JUDGMENT ORDER BY STEVENS, P.J.E.:                 FILED JANUARY 25, 2017

      Geoffrey Hetherington (“Appellant”) appeals from the order entered in

the Court of Common Pleas of Westmoreland County denying his first Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, petition without

a hearing and granting PCRA counsel’s petition to withdraw as counsel

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). He argues that

the PCRA court erroneously accepted PCRA counsel’s Turner/Finley letter

and dismissed his petition when counsel’s letter failed to list and address

Appellant’s pro se claim that trial counsel ineffectively denied him his right to

testify. We vacate and remand.




*Former Justice specially assigned to the Superior Court.
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       It is well-settled that a PCRA petitioner is not automatically entitled to

an evidentiary hearing, and this Court will review the PCRA court's decision

to dismiss a petition without a hearing for an abuse of discretion.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).                    A

reviewing court will examine each issue raised in a PCRA petition in light of

the record certified before it to determine if the PCRA court erred in finding

that there were no genuine issues of material fact in controversy and in

denying relief without conducting an evidentiary hearing. Id.

       In its Pa.R.A.P. 1925(a) opinion, the PCRA court concedes that it erred

when it accepted counsel’s Turner/Finley letter and dismissed Appellant’s

petition when the letter failed to address all issues raised in the pro se PCRA

petition. The Commonwealth responds that Appellant effectively waived his

claim by filing serial PCRA appeals both before and after the time he

received the PCRA court’s Rule 907 notice of dismissal, thus “precluding” the

court’s ability to review his claims.1 The record shows that Appellant filed no

pro se response to the PCRA court’s Rule 907 notice.
____________________________________________


1
  On August 7, 2015, the PCRA court entered its Rule 907 notice of intent to
dismiss and advised Appellant of his opportunity to respond within 20 days.
27 days later, on September 3, 2015, Appellant filed a pro se notice of
appeal to this Court. The PCRA court entered its final order dismissing
Appellant’s pro se petition on September 15, 2015. We decline to accept the
proposition that Appellant prevented the court from properly reviewing the
record prior to issuing Rule 907 notice and entering its final order.

Additionally although Appellant's notice of appeal was premature when filed,
we will regard this appeal as timely. See Pa.R.A.P. 905(a)(5) (“A notice of
(Footnote Continued Next Page)


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         Pursuant to Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), a

defendant waives only a challenge to PCRA counsel's effective assistance of

counsel by failing to raise such a claim in a timely response to a Rule 907

notice of intent to dismiss.             As stated, however, Appellant’s present

challenge goes not to PCRA counsel’s stewardship but, instead, to the PCRA

court’s act of dismissing his petition without having reviewed every claim it

alleged.

         Accepting PCRA counsel's Turner/Finley letter when it failed to list

and address all of the issues raised in Appellant’s pro se petition was judicial

error.     See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super.

2007) (providing counsel must, among other requirements, list “the issues

which the petitioner wants to have reviewed, explaining why and how those

issues lack merit ... If counsel fails to satisfy the foregoing technical

prerequisites of Turner/Finley, the court will not reach the merits of the

underlying claims but, rather, will merely deny counsel's request to

withdraw”).     The PCRA court should have, instead, denied PCRA counsel's

petition to withdraw and ordered him to file either an amended PCRA

petition or a compliant Turner/Finley letter.
                       _______________________
(Footnote Continued)

appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”); see also Commonwealth v. Swartzfager, 59 A.3d 616,
618 n.3 (Pa. Super. 2012) (accepting premature notice of appeal filed after
entry of Rule 907 Notice but before final order dismissing PCRA petition).




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      Therefore, we concur with the PCRA court’s recommendation that we

remand this matter for further review.        Accordingly, we vacate the order

dismissing Appellant's PCRA petition and remand for the appointment of new

PCRA counsel, who shall review the record and file either an amended

petition or a compliant Turner/Finley letter addressing all issues originally

raised in Appellant’s pro se PCRA petition.

      Order vacated and case remanded for further proceedings consistent

with this order. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2017




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