J-S10006-19

                                   2019 PA Super 86

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH KELSEY                              :
                                               :
                       Appellant               :   No. 3619 EDA 2017

                 Appeal from the PCRA Order October 13, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004554-2010


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

OPINION BY COLINS, J.:                                  FILED MARCH 22, 2019

       Appellant, Joseph Kelsey, appeals, pro se, from the order of the Court

of Common Pleas of Philadelphia County that dismissed his first petition filed

under the Post Conviction Relief Act (“PCRA”)1 without a hearing.      For the

reasons set forth below, we vacate the PCRA court’s order and remand this

case for appointment of new PCRA counsel.

       This matter arises out of a robbery and fatal shooting in a dispute over

a marijuana sale. On February 25, 2014, a jury convicted Appellant of second-

degree murder, robbery, criminal conspiracy, carrying a firearm without a

license, carrying a firearm in public in Philadelphia, possession of an

instrument of crime, and intimidation of a witness.2 The trial court sentenced

Appellant to life imprisonment without parole for the second-degree murder
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1   42 Pa.C.S. §§ 9541–9546.
218 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), 903 (3701(a)(1)(i) related),
6106(a)(1), 6108, 907(a), and 4952(a)(1), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10006-19



conviction and a consecutive sentence of five to ten years’ imprisonment for

the witness intimidation conviction. The trial court also imposed concurrent

sentences of five to ten years’ imprisonment for both the robbery and

conspiracy convictions, a concurrent sentence of two and one-half to five years

imprisonment for carrying a firearm without a license, and no further penalty

for the carrying a firearm in public and possession of an instrument of crime

convictions.

      Appellant’s trial counsel filed a direct appeal challenging the sufficiency

of the evidence and challenging the robbery sentence as barred by merger.

On June 23, 2015, this Court affirmed the judgment of sentence with respect

to all of the convictions other than robbery and vacated the concurrent robbery

sentence, without remand to the trial court, on the ground that the robbery

conviction merged for sentencing purposes with the second-degree murder

conviction. Commonwealth v. Kelsey, 122 A.3d 1141 (Pa. Super. 2015)

(unpublished memorandum). Trial counsel filed a petition for allowance of

appeal, which the Pennsylvania Supreme Court denied on February 1, 2016.

Commonwealth v. Kelsey, 131 A.3d 490 (Pa. 2016).

      On February 8, 2017, Appellant filed a timely pro se PCRA petition. In

this prolix petition, Appellant listed over 20 issues, including claims that the

Commonwealth      failed   to   comply    with   Pa.R.Crim.P.   600,   that   three

Commonwealth witnesses gave false testimony, that the Commonwealth

withheld exculpatory evidence, that the charging documents and arrest

warrant were defective, and that trial counsel was ineffective. PCRA Petition

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at 2, 4, 7-8. Appellant’s claims of ineffectiveness of trial counsel included

claims that trial counsel failed to assert the above arguments, that trial

counsel misrepresented to Appellant’s family that Appellant was going to plead

guilty, that trial counsel failed to inform Appellant of a plea offer, that trial

counsel failed to inform Appellant of his right to testify, that trial counsel failed

to interview witnesses and retain experts, that trial counsel failed to file a

motion to suppress, that trial counsel failed to obtain the results of

Commonwealth tests on evidence, that trial counsel failed to investigate

Appellant’s mental health status and the mental health status of witnesses,

and that trial counsel failed to request jury instructions on defenses to

accomplice liability and conspiracy and on the lesser included offenses of

voluntary manslaughter and involuntary manslaughter. Id.

      In March 2017, the PCRA court appointed counsel to represent Appellant

with respect to his PCRA petition. On August 18, 2017, PCRA counsel filed a

motion to withdraw and a no-merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc).          In his no-merit letter, PCRA counsel

correctly stated that the PCRA petition was timely filed, briefly discussed

Appellant’s Rule 600 claim, the claims that two Commonwealth witnesses

committed perjury, the claim that trial counsel misrepresented to Appellant’s

family that Appellant was going to plead guilty, and the claims concerning the

charging documents and Appellant’s arrest, and stated his conclusions that

those issues were meritless. Turner/Finley Letter at 4-6. PCRA counsel also

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discussed in his no-merit letter the legal standard applicable to claims of

ineffective assistance of counsel, stated a single sentence conclusion that

Appellant’s “rights were vigilantly protected” by trial counsel, and represented

that he found no issues of merit in his independent review of the record. Id.

at 2-3, 6-7.

       On September 12, 2017, the PCRA court issued a notice pursuant to

Pa.R.Crim.P. 907 of its intent to dismiss Appellant's petition without a hearing.

Appellant filed a timely response to the Rule 907 notice in which he specifically

asserted that PCRA counsel’s no-merit letter failed to address all of the issues

in his PCRA petition, asserted that PCRA counsel was ineffective, and sought

to amend the PCRA petition. Response to Rule 907 Notice at 1-2, 10-11, 14-

16, 26. On October 13, 2017, the PCRA court dismissed Appellant’s PCRA

petition as lacking merit.3

       Appellant timely filed this pro se appeal from the dismissal of his PCRA

petition.   In his Pa.R.A.P. 1925(b) statement of errors complained of on

appeal, Appellant, in addition to raising issues concerning the merits of his

PCRA petition, reiterated his claim that he had been denied effective

assistance of counsel on the PCRA petition and that PCRA counsel did not

conduct a sufficient review and investigation of the record and the claims that

Appellant sought to raise. Rule 1925(b) Statement at 4. In its opinion, the

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3 Although only an order dismissing the PCRA petition is in the record, the
docket entries state that the PCRA court on the same date granted PCRA
counsel leave to withdraw.

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PCRA court made its own analysis of claims raised in the PCRA petition,

including claims not addressed by PCRA counsel, but did not address the

issues of the sufficiency of PCRA counsel’s no-merit letter and his

representation of Appellant.

       In his brief before this Court, Appellant raises 16 issues with respect to

merits of his PCRA petition and also raises the following issue with respect to

PCRA counsel:

       Was the Appellant prejudiced and/or deprived fundamental and
       substantive right(s) to the assistance of counsel on his first PCRA,
       a fair opportunity to have issues addressed in accordance with the
       Post Conviction Relief Act when appointed PCRA counsel … filed a
       no-merit letter that did not meet the requirements in filing such
       letter, and the PCRA court subsequently dismissed said Petition
       without a hearing?

Appellant’s Br. at 7, 55-59. The Commonwealth does not concede that any of

the challenges to Appellant’s convictions in the PCRA petition are meritorious,

but contends that PCRA counsel’s no-merit letter was inadequate and that the

PCRA court’s order must therefore be vacated and this matter remanded for

appointment of new PCRA counsel. We agree.4

       We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is free of legal error.

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014); Commonwealth

v. Cherry, 155 A.3d 1080, 1082 (Pa. Super. 2017).

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4 Because we conclude that PCRA court’s order must be vacated on this
ground, we do not address any of the other issues raised by Appellant in this
appeal.

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      The PCRA petition here is a first PCRA petition. A convicted defendant

has a right under the Rules of Criminal Procedure to the assistance of counsel

on a first PCRA petition. Pa.R.Crim.P. 904(C); Cherry, 155 A.3d at 1082;

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en

banc). “The indigent petitioner’s right to counsel must be honored regardless

of the merits of his underlying claims, even where those claims were

previously addressed on direct appeal, so long as the petition in question is

his first.” Cherry, 155 A.3d at 1082 (quoting Commonwealth v. Powell,

787 A.2d 1017 (Pa. Super. 2001)).

      If PCRA counsel seeks to withdraw on the ground that the issues raised

by the PCRA petitioner are without merit, he must satisfy the following

requirements: he must file a sufficient no-merit letter, send the PCRA

petitioner copies of the application to withdraw and no-merit letter, and advise

the PCRA petitioner of his right to proceed pro se or with a privately retained

attorney.   Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super.

2016); Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).

The no-merit letter must set forth: 1) the nature and extent of counsel’s

review of the case; 2) each issue that the petitioner wishes to raise on appeal;

and 3) counsel’s explanation of why each of those issues is meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009); Turner, 544

A.2d at 928-29; Rykard, 55 A.3d at 1184; Commonwealth v. Glover, 738

A.2d 460, 464 (Pa. Super. 1999). Where PCRA counsel’s no-merit letter does

not discuss all of the issues that the convicted defendant has raised in a first

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PCRA petition and explain why they lack merit, it does not satisfy these

mandatory requirements and dismissal of the PCRA petition without requiring

counsel to file an amended PCRA petition or a further, adequate no-merit letter

is a deprivation of the right to counsel on the PCRA petition. Commonwealth

v. Karanicolas, 836 A.2d 940, 945-47 (Pa. Super. 2003); Glover, 738 A.2d

at 464-65; Commonwealth v. Mosteller, 633 A.2d 615, 617-18 (Pa. Super.

1993).

       Here, it is clear that PCRA counsel’s no-merit letter was seriously

deficient. PCRA counsel’s no-merit letter discussed only a subset of the issues

that Appellant stated in his PCRA petition. Notably, PCRA counsel’s no-merit

letter neither listed nor discussed most of Appellant’s claims that trial counsel

was inadequate, including claims that trial counsel failed: to inform Appellant

of a plea offer; to inform Appellant of his right to testify; to interview witnesses

and retain experts; to file a motion to suppress; to obtain the results of

Commonwealth tests on evidence; to investigate Appellant’s mental health

status and the mental health status of witnesses; and to request certain jury

instructions.5    While the inadequacy of PCRA counsel’s no-merit letter is

waived if not raised before the PCRA court and this Court, Pitts, 981 A.2d at

879-80 & nn.3 & 4, Appellant has fully raised and preserved this issue at all


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5Indeed, PCRA counsel’s no-merit letter not only does not discuss most of
Appellant’s ineffective assistance of counsel claims, it also misidentifies
Appellant’s trial counsel as another attorney who did not represent Appellant.
Turner/Finley Letter at 1, 6.

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stages of this proceeding and has specifically asserted and briefed this issue

in this appeal.

      We recognize that the PCRA court conducted an independent review of

the claims that it believed were asserted in the PCRA petition and that its

review went beyond PCRA counsel’s inadequate no-merit letter. The error

here, however, is the denial of the assistance of counsel, not the sufficiency

of the PCRA court’s opinion or whether Appellant’s claims in his PCRA petition

are meritorious. Even where a pro se first PCRA petition appears on its face

to be meritless, the defendant is entitled to representation by counsel before

that determination is made. Commonwealth v. Ramos, 14 A.3d 894, 895-

96 (Pa. Super. 2011); Commonwealth v. Stout, 978 A.2d 984, 988 (Pa.

Super. 2009).

      Because Appellant did not waive his right to representation by counsel

and PCRA counsel neither represented Appellant on the merits of the PCRA

petition nor filed a sufficient no-merit letter that addressed all of Appellant’s

claims, the PCRA court’s dismissal of Appellant’s PCRA petition must be

vacated and remand to the PCRA court for appointment of new PCRA counsel

is required. Cherry, 155 A.3d at 1083; Glover, 738 A.2d at 465; Mosteller,

633 A.2d at 617-18. On remand, Appellant’s new counsel shall be permitted

to file an amended PCRA petition or, if counsel concludes in the exercise of his

or her professional judgment that the issues raised in the PCRA proceeding

are without merit, counsel may file an adequate no-merit letter that addresses




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all of the issues raised in Appellant’s PCRA petition and move to withdraw.

Cherry, 155 A.3d at 1083; Glover, 738 A.2d at 465.

      Order vacated. Case remanded with instructions to appoint new PCRA

counsel. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/19




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