J-S50032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JAVIER GONZALEZ

                         Appellant                  No. 2544 EDA 2014


                 Appeal from the PCRA Order July 21, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0004027-2007


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

DISSENTING STATEMENT BY PANELLA, J.             FILED OCTOBER 15, 2015

      As the Majority correctly notes, this appeal is a legal nullity since

Gonzalez filed the notice of appeal pro se while represented by counsel. As

such, it is apparent from the record that counsel abandoned Gonzalez prior

to filing a motion to withdraw. If this were the only apparent problem with

counsel’s stewardship of this case, I might join my esteemed colleagues in

the Majority in overlooking this deficiency in the interests of judicial

economy.    It is, however, not the only problem.     As the Majority again

correctly notes, there are several other issues with counsel’s performance in

this matter, including a failure to ensure that a copy of the counseled,

amended petition upon which this appeal is based was included in the

certified record on appeal.
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      I am not comfortable “deducing” what is in a document that is not in

the certified record, as such a deduction is contrary to well-established case

law. See Roth Cash Register Company, Inc. v. Micro Systems, Inc.,

868 A.2d 1222, 1223 (Pa. Super. 2005). Furthermore, “[i]t is the obligation

of the appellant to make sure that the record forwarded to an appellate

court contains those documents necessary to allow a complete and judicious

assessment of the issues raised on appeal.” Everett Cash Mutual

Insurance Company v. T.H.E. Insurance Company, 804 A.2d 31, 34

(Pa. Super. 2002) (quoting Hrinkevich v. Hrinkevich, 676 A.2d 237, 240

(Pa. Super. 1996)).          Thus, appointed counsel’s “inadequacies” further

prevent this Court from substantively addressing any issue on this appeal.

      Nor am I willing to assume that effective counsel could not have

possibly found any claim or argument that qualified for an exception from

the time-bar.    A facially untimely petition does “not preclude a court from

appointing counsel to aid an indigent petitioner in attempting to establish an

exception to the time-bar.” Commonwealth v. Smith, 818 A.2d 494, 499

(Pa. 2003).     “[A]n indigent petitioner, who files his first PCRA petition, is

entitled   to   have    counsel   appointed   to   represent   him   during   the

determination of whether any of the exceptions to the one-year time

limitation apply.”     Id.   If I were to apply the Majority’s reasoning, there

would never be any reason to appoint counsel to represent a petitioner

pursuant to a facially untimely petition; the courts could simply deduce what


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the petitioner wishes to argue, and presume that it could never be

successfully argued. Our Supreme Court has clearly provided that this is not

the way the system is designed to operate.

      As a result, I have no confidence that Gonzalez has received his right

to effective assistance of counsel in pursuing his first PCRA petition. Rather,

upon the record before us, I conclude that counsel abandoned Gonzalez prior

to the filing of the notice of appeal and, further, prior to filing his motion to

withdraw. Thus, while I conclude that the appeal is a legal nullity, I would

provide Gonzalez with the remedies set forth in Commonwealth v.

Williamson, 21 A.3d 236 (Pa. Super. 2011).          Contrary to the Majority’s

assertion, Williamson is directly on point here, as it involved abandonment

by counsel as evidenced by a failure to file an appeal. I would also deny the

petition to withdraw, and note that appointed counsel would retain the duty

to ensure that Gonzalez received notice of this decision in a prompt manner.




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