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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

SEAN D. GREENE,

                          Appellant                     No. 1505 WDA 2013


               Appeal from the PCRA Order August 28, 2013
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0015507-2006


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                    FILED MARCH 18, 2015

      After careful review, I respectfully disagree with the Majority’s

conclusion that, despite the PCRA court’s failure to comply with the notice

requirements of Pa.R.Crim.P. 907, Appellant received the protection afforded

by Rule 907. Thus, I would vacate the PCRA court’s order and remand.

      The   notice   requirement      contained   in   Rule   907   is   mandatory.

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000). Rule

907 reads, in relevant part, as follows:

      (1) the judge shall promptly review the petition, any answer by
      the attorney for the Commonwealth, and other matters of record
      relating to the defendant’s claim(s). 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 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 the dismissal. The defendant may
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      respond to the proposed dismissal within 20 days of the date of
      the notice.   The judge thereafter shall order the petition
      dismissed, grant leave to file an amended petition, or direct that
      the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis supplied).        Clearly, Rule 907(1) refers to a

petitioner having twenty days in which to file a response to the PCRA court’s

notice of intent to dismiss—not to counsel’s Turner/Finley documents.

      Here, the PCRA court’s notice of intent to dismiss appeared on the

docket on August 14, 2013.         On the same day, the trial court received

Appellant’s response to counsel’s Turner/Finley documentation.               Despite

the twenty-day requirement of Rule 907, the PCRA court’s order denying

Appellant’s PCRA petition appeared on the docket on August 28, 2013, only

fourteen days after the date of the Rule 907 notice. Appellant did not file a

response to the PCRA court’s Rule 907 notice in that two-week period.

      Using hindsight, the Majority concludes that Appellant “was afforded

the   protection   provided   by    the    notice   requirement     of    Rule    907”

because “in responding to Counsel’s motion, [Appellant] responded to the

grounds upon which the PCRA court proposed to dismiss his PCRA petition.”

Majority at n.3.     In support of its conclusion, the Majority relies on

Commonwealth        v.   Albrecht,        720   A.2d   693   (Pa.        1998),   and

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003). However, its

reliance on those cases is misplaced. Before the PCRA court dismissed the

petitions in Albrecht and Barbosa, each of the petitioners was afforded




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both further proceedings and an opportunity to present argument in support

of his petition. Albrecht, 720 A.2d at 710; Barbosa, 819 A.2d at 86 n.4.

      Appellant here did not receive the full twenty days in which to respond

to the PCRA court’s notice, further proceedings, or an opportunity to present

argument. Therefore, I would vacate the PCRA court’s order and remand,

allowing Appellant at least the additional six days in which to file a response

to the PCRA court’s proposed grounds for dismissal, as well as any claims

related to PCRA counsel’s representation.    See Commonwealth v. Pitts,

981 A.2d 875, 880 n.4 (Pa. 2009) (instructing that petitioner may challenge

PCRA counsel’s stewardship after receiving counsel’s withdrawal letter and

notice of PCRA court’s intent to dismiss ); Commonwealth v. Henkel, 90

A.3d 16 (Pa. Super. 2014) (summarizing case law on raising claims of PCRA

counsel’s ineffectiveness).




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