J-S64016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT FENNELL                             :
                                               :
                       Appellant               :   No. 415 WDA 2019

               Appeal from the PCRA Order Entered March 5, 2019
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0001935-2009


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 30, 2019

        Robert Fennell appeals from the order, entered in the Court of Common

Pleas of Cambria County, dismissing his petition filed pursuant to the Post

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

review, we vacate the PCRA court’s order and remand for further proceedings

consistent with this memorandum.

        Fennell, while incarcerated at State Correctional Institute Cresson,

punched Corrections Officer Russell Bollinger in the face. Following a non-jury

trial on June 25, 2010, the court convicted Fennell of two counts of aggravated

assault, and one count each of simple assault, assault by a prisoner, resisting

arrest, and recklessly endangering another person. On August 10, 2010, the

court sentenced Fennell to an aggregate term of 10 to 20 years’ incarceration.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       Fennell timely filed a direct appeal. On March 19, 2012, we vacated his

simple assault and aggravated assault convictions, but left the structure of his

sentence intact. Commonwealth v. Fennell, 186 WDA 2011 (Pa. Super.

filed March 19, 2012) (unpublished memorandum). Fennell filed a petition for

allowance of appeal, which our Supreme Court denied.1         On May 9, 2014,

Fennell filed a pro se PCRA petition. The PCRA court appointed counsel, who

filed an amended PCRA petition on August 13, 2014, alleging ineffective

assistance of trial counsel. On July 27, 2015, following an evidentiary hearing,

the PCRA court denied Fennell’s petition. He filed a timely notice of appeal,

and on December 2, 2016, we affirmed the PCRA court’s decision.

Commonwealth v. Fennell, 1280 WDA 2015 (Pa. Super. filed Dec. 2, 2016).

Fennell timely filed a petition for allowance of appeal, which our Supreme

Court denied. Commonwealth v. Fennell, 72 A.3d 600 (Pa. 2013) (Table).

       Fennell filed the instant pro se PCRA petition on February 2, 2018. The

Honorable Timothy P. Creany appointed Richard Corcoran, Esquire, to

represent Fennell. Attorney Corcoran informed the PCRA court he could not

represent Fennell because of a conflict; consequently, the PCRA court replaced

Attorney Corcoran with Russell Heiple, Esquire, on June 29, 2018. Order,

6/29/18, at 1. On September 10, 2018, Attorney Heiple filed a letter with the


____________________________________________


1Fennell did not initially file a petition for allowance of appeal, but was later
granted reinstatement of his right to do so after filing a timely PCRA petition.




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PCRA court detailing the deficiencies in some of Fennell’s claims, while stating

other claims “need to be developed and addressed by . . . [the PCRA] court.[2]”
____________________________________________


2 Attorney Heiple’s letter, though critical of Fennell’s claims, does not purport
to be a “no-merit” letter. See Letter, 9/10/18, at 1–2. Reproduced verbatim,
it reads as follows:

       Dear Judge Creany;

              I have reviewd Mr. Fennell’s PCRA Petition and the Court’s
       file including The Superior Court decision filed on December 2,
       2016 and the Amended Petition For Post-Conviction Relief filed
       August 13, 2014.

             Mr. Fennell’s claims that briefs and/or appeals filed in his
       behalf were deficient Seem to bec ured by the Superior Court’s
       2016 opinion (no. 1379 WDA 2015). Rather Than dismiss his
       appeal, the Court addressed numerous issues raised.
       Additionally, a Petition for Allowance of Appeal was filed to the
       supreme Court of Pennsylvania which was denied.

              1.     The summons issued was addressed by the Superior
                     Court.

              2.     The deficiencies in counsel’s brief/appeal did not keep
                     the Superior Court
                           From reviewing his errors in the lower court.

              3.     The RRRI issue was not previously raised.

              4.     Failure to have the preliminary hearing recorded was
                     not previously raised.

              5.     Criminal record of victim, Russell Bollinger, was not
                     previously addressed and
                           The scope of cross-examination to include prior
                           encounters may not have Been explored in
                           depth; however, the Superior Court has ruled
                           that Attorney Sottile did not act unreasonably in
                           his cross-examination. (pg. 13)



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Letter, 9/10/18, at 1–2. On October 23, 2018, Fennell submitted a motion to

proceed pro se, requesting a hearing to determine whether he waived his right

to   counsel       knowingly,    intelligently,   and   voluntarily,   pursuant   to

____________________________________________




              6.     Petitioner’s claim hat the closing of SCI Cresson which
                     supports his claim of
                            Justification was not previously raised.

              7.     Defendant’s claim that his arraignment did not occur
                     until the date of trial was
                            Not previously Addressed and would support a
                            claim of lack of due process
                            As Defendant would have not realized the
                            nature of the charge

              Numbers 3,4, and 7 need to be developed and addressed by
              this Court.

Letter, 9/10/18, at 1–2 (syntactical, spelling, and grammatical errors in
original).

Basic errors in grammar and spelling aside, Attorney Heiple’s letter represents
an abject failure of legal advocacy, denying Fennell fundamental protections
under Commonwealth v. Turner, 522 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and
raising serious issues under the Rules of Professional Conduct, directly
implicating the requirement to provide competent representation under Rule
1.1. and diligent representation under Rule 1.3. See Commonwealth v.
Mosteller, 633 A.2d 615, 616 (Pa. Super. 1993) (finding PCRA court erred by
failing to reject flawed “no-merit” letter); see also Pa.R.P.C. 1.1, CMT 5
(“Competent handling of particular matter includes inquiry into and analysis
of the factual and legal elements of the problem, and use of methods and
procedures meeting the standards of competent practitioners.”); Pa.R.P.C.
1.3, CMT 1 (“A lawyer should pursue a matter on behalf of a client despite
opposition, obstruction or personal inconvenience to the lawyer, and take
whatever lawful and ethical measures are required to vindicate a client’s cause
or endeavor.”).



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Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Motion to Proceed Pro

Se, 10/23/18, 1 (citing Grazier, supra). The PCRA court did not address

Fennell’s motion. See Order, 12/19/18, at 1–2 (sending materials relevant to

Fennell’s claims to Attorney Heiple). On Feburary 8, 2019, Attorney Heiple

filed a “memorandum in support of relief pursuant to PCRA petition” which

advanced some of Fennell’s claims, while discrediting others.                  See

Memorandum, 2/8/19, at 1–8 (stating some claims necessitate new trial,

stating the result of others to be “unknown” or that “counsel cannot [a]rgue

that, if true, would impact a finding of guilt.”).

       On March 5, 2019, Judge Creany filed an opinion and order denying

Fennell’s PCRA petition on the merits.3 See Opinion, 3/5/19, at 1–9. Fennell

filed a timely pro se notice of appeal. The PCRA court issued an order requiring

Fennell to file a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b); the court, however, neither informed Attorney Heiple of

his client’s pro se filing nor granted Attorney Heiple permission to withdraw.

See Order, 3/21/19, at 1. Both Fennell and the PCRA court complied with

Rule 1925.

       Fennell raises the following claim on appeal:

       1)     Was trial counsel ineffective in failing to pursue and did the
              Commonwealth fail to search and provide to counsel
              statements of witnes[s]es who would have provided
              exculpatory evidence for defendant at trial?

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3We note Judge Creany’s opinion fails to address the fact that Fennell’s claims
appear facially untimely. See Opinion, 3/5/19, at 7.

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Brief of Appellant, at 4.

      Preliminarily, we must address Attorney Heiple’s representation of

Fennell.   “[O]nce counsel has entered an appearance on a [petitioner’s]

behalf[,] he is obligated to continue representation until the case is concluded

or he is granted leave by the court to withdraw his appearance.”

Commonwealth v. Willis, 29 A.3d 393, 397 (Pa. Super. 2011) (emphasis

added); see also Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. Super.

1993) (“[T]here is no constitutional right to hybrid representation[.]”).

      Instantly, the record lacks any indication the court permitted Attorney

Heiple to withdraw from representing Fennell.       Attorney Heiple’s filings—

reminiscent of Turner/Finley “no-merit” letters, albeit woefully inadequate—

do not indicate a desire to withdraw. See Letter, 9/10/18, at 1–2; see also

Memorandum, 2/8/19, at 1–8.         Furthermore, Fennell filed a number of

materials pro se, including a motion to proceed pro se requesting a Grazier

hearing. Motion to Proceed Pro Se, 10/23/18, 1.

      “[I]n any case where a defendant seeks self-representation in a PCRA

proceeding and where counsel has not properly withdrawn, a [Grazier]

hearing must be held.” Commonwealth v. Robinson, 970 A.2d 455, 456

(Pa. Super. 2009); see id at 460 (vacating PCRA court’s order and remanding

case to remedy failure to hold Grazier hearing after PCRA petitioner voiced

desire to proceed pro se). Grazier requires “an on-the record determination”

as to whether that waiver is “a knowing, intelligent, and voluntary one.”


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Grazier, supra at 82. This requirement results from PCRA petitioners lacking

a right to contemporaneous representation both pro se and by counsel. See

Commonwealth v. Pursell, 724 A.2d 293, 251 (Pa. 1999) (prohibiting

hybrid representation in PCRA proceedings); see also Ellis, supra at 1139

(finding no right to hybrid representation on appeal).

        As Attorney Heiple was not granted permission to withdraw, and as

Fennell, after indicating his desire to proceed pro se was not afforded a

Grazier hearing, we vacate the denial of PCRA relief and remand for a hearing

consistent with the requirements of Grazier, supra. Robinson, supra at

456. If Fennell retracts his desire to act as his own counsel, new PCRA counsel

shall be appointed. If new counsel finds Fennell’s claims lack merit, he or she

must file a proper Turner/Finley “no-merit” letter and the PCRA court must

concur the claims are meritless before permitting counsel to withdraw. See

Commonwealth v. Widgins, 29 A.3d 816, 817–18 (Pa. Super. 2011)

(requiring valid “no-merit” letter and independent review of record by PRCA

court before permitting withdrawal). We note our concern with the actions of

both Attorney Heiple and the PCRA court, who collectively failed to ensure,

after   the   appointment   of   counsel,   that   Fennell   received    adequate

representation or understood the implications of waiving representation.

        Order vacated.   Case remanded for Grazier hearing.             Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2019




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