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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

LAWRENCE A. GAINES,

                            Appellant                     No. 3311 EDA 2015


                  Appeal from the PCRA Order October 9, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003210-2012


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED SEPTEMBER 27, 2016

       Appellant, Lawrence A. Gaines, appeals from the October 9, 2015

order that denied his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.             After careful review, we vacate and

remand for further proceedings.

       In a criminal information filed on November 14, 2012, Appellant was

charged with one count of criminal homicide for the death of William

Thompson on July 3, 2012, in Easton, Pennsylvania.           Following a jury trial,

Appellant was found guilty of first-degree murder. On May 9, 2013, the trial

court sentenced Appellant to a term of life imprisonment without the

possibility of parole.       Appellant filed post-sentence motions that were
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*
    Retired Senior Judge assigned to the Superior Court.
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denied, and he subsequently filed a timely appeal.      This Court affirmed

Appellant’s judgment of sentence, and the Supreme Court denied Appellant’s

petition for allowance of appeal.   Commonwealth v. Gaines, 1938 EDA

2013, 107 A.3d 217 (Pa. Super. filed September 2, 2014) (unpublished

memorandum), appeal denied, 718 MAL 2014, 109 A.3d 678 (Pa. filed

February 17, 2015).

     On June 8, 2015, Appellant filed a timely PCRA petition, and the PCRA

court appointed counsel on June 16, 2015. On August 13, 2015, Appellant

filed an amended PCRA petition pro se despite being represented by counsel.

The PCRA court held a hearing on August 21, 2015. This hearing was not

dispositive; rather, it was referred to as an “issue framing conference.”

N.T., 8/21/15, at 16. At this conference, Appellant’s counsel informed the

PCRA court of the claims Appellant wanted to raise but concluded that after

reviewing the case, there were no meritorious issues.   Id. at 12-19.   The

PCRA court then instructed as follows:

     THE COURT: Well, here’s what we’re going to do, Mr. Karam
     [(“PCRA counsel”)]. [PCRA counsel] is appointed to represent
     you. I’m going to take under advisement what I just heard from
     him. He’s going to send me a letter that deals not only [with]
     the first PCRA, but your amended PCRA, and then I’ll have to
     make a decision based on what I received from him as to
     whether, as he said, whether there should be a hearing or
     whether to dismiss [the PCRA petition] without a hearing. And
     then you will have to delineate what your rights are thereafter.




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Id. at 19. We interpret this language from the PCRA court as an instruction

to PCRA counsel to properly file a Turner/Finley1 motion to withdraw and a

“no-merit letter,” after which the PCRA court would decide the motion and

dispose of Appellant’s PCRA petition.

       On September 16, 2015, the PCRA court sent Appellant notice of its

intent to dismiss the PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907.       In an order filed on October 9, 2015, the PCRA court

dismissed Appellant’s petition, and Appellant filed a timely appeal.      On

November 4, 2015, the PCRA court filed an order directing Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b) on or before November 25, 2015.          On December 14, 2015, the

PCRA court filed a statement in which it concluded that Appellant had failed

to file a Pa.R.A.P. 1925(b) statement, rendering any issues on appeal

waived.2    However, the PCRA court’s docket entries reveal and the record

confirms that Appellant’s Pa.R.A.P. 1925(b) statement was timely filed on

November 20, 2015. Certified Record at Docket Entry 75.

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1
   See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements for counsel to withdraw from representing a
petitioner on collateral review).
2
  An appellant’s failure to comply with an order to file a Pa.R.A.P. 1925(b)
statement generally results in waiver of all issues on appeal.
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).




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       The Commonwealth argues that while Appellant properly filed his

Pa.R.A.P. 1925(b) statement, he failed to serve it on the PCRA court, and

therefore, his issue on appeal is waived. Commonwealth’s Brief at 8 (citing

Commonwealth v. $766.00 U.S. Currency, 948 A.2d 912 (Pa. Cmwlth.

2008)).3    Under the facts of this case, however, we decline to find waiver

based on Appellant’s failure to serve the Pa.R.A.P. 1925(b) statement on the

PCRA judge.         Appellant is an indigent, pro se petitioner, who was

incarcerated at the time of the filing. We note that “strict application of the

bright-line rule [concerning waiver under Pa.R.A.P. 1925(b)] necessitates

strict interpretation of the rules regarding notice of Rule 1925(b) orders.”

In   re    L.M.,    923    A.2d    505,    509-510   (Pa.   Super.   2007)   (citing

Commonwealth v. Davis, 867 A.2d 585, 588 (Pa. Super. 2005)); and see

Pa.R.Crim.P. 114.

       In order for an appellant to be subject to waiver for failing to comply

with Pa.R.A.P. 1925(b), the trial court must first issue an order directing the

appellant to do so.       Commonwealth v. Hess, 810 A.2d 1249, 1252 (Pa.

2002). Here, while the docket provides the date of the Rule 1925(b) order,

it does not reflect that it was served on Appellant; the docket entry lists no

recipients, only a notation stating “interoffice.” Docket Entry, 11/4/15. “If

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3
  The Commonwealth, however, concedes that we are not bound by
decisions of the Commonwealth Court. Commonwealth’s Brief at 8 n.4.




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the docket does not show that notice of the entry of a Rule 1925(b) order

was provided to an appellant, then we will not conclude that the appellant’s

issues have been waived[.]” In re L.M., 923 A.2d at 510. Thus, for these

reasons we decline to find waiver.

      On appeal, Appellant raises the following issue:

             Whether Appellant was effectively deprived of           his right to
      counsel on his first PCRA petition to the extent               that PCRA
      counsel’s ‘no-merit’ letter did not evidence any               meaningful
      participation where PCRA counsel failed to address             all of [the]
      issues?

Appellant’s Brief at 4.

      Our standard of review of an order granting or denying relief under the

PCRA requires us to determine whether the decision of the PCRA court is

supported   by   the      evidence   of   record   and   is   free   of   legal     error.

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).                          “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

      After review, we conclude that Appellant is entitled to remand. As will

be explained below, counsel’s withdrawal from representation and the PCRA

court’s Rule 907 notice are fatally flawed.

      Initially, we note that generally, a PCRA appellant waives issues

pertaining to the adequacy of PCRA counsel’s no-merit letter if he fails to

raise them during the twenty-day response period provided by Pa.R.Crim.P.


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907.      Commonwealth v. Pitts, 981 A.2d 875, 879 n.3 (Pa. 2009).

However, the instant case is distinguishable from Pitts. Herein, there is no

evidence in the record that a motion to withdraw or no-merit letter pursuant

to Turner/Finley were filed or that Appellant was timely served.4

Therefore, Appellant was not informed properly of his rights under the PCRA

or his ability to respond to counsel’s motion to withdraw.

        In the Rule 907 notice, the PCRA court stated that counsel filed a “no-

merit” letter on August 24, 2015, and it granted the motion to withdraw;
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4
    The requirements for withdrawal in collateral proceedings are as follows:

        Counsel petitioning to withdraw from PCRA representation must
        proceed ... under Turner, supra and Finley, supra and ...
        must review the case zealously. Turner/Finley counsel must
        then submit a no-merit letter to the trial court, or brief on appeal
        to this Court, detailing the nature and extent of counsel’s diligent
        review of the case, listing the issues which petitioner wants to
        have reviewed, explaining why and how those issues lack merit,
        and requesting permission to withdraw.

        Counsel must also send to the petitioner: (1) a copy of the no
        merit letter/brief; (2) a copy of counsel’s petition to withdraw;
        and (3) a statement advising petitioner of the right to proceed
        pro se or by new counsel.

        Where counsel submits a petition and no-merit letter that ...
        satisfy the technical demands of Turner/Finley, the court—trial
        court or this Court—must then conduct its own review of the
        merits of the case. If the court agrees with counsel that the
        claims are without merit, the court will permit counsel to
        withdraw and deny relief.

Commowealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016)
(quotation marks and citations omitted).




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however, there is no motion to withdraw or Turner/Finley letter in the

certified record, and the PCRA court docket entries do not reflect the filing of

those documents. Further convoluting matters is the fact that, in Appellant’s

pro se brief, he appends a copy of a Turner/Finley letter which was

addressed to the PCRA court. Appellant’s Brief at Exhibit D. However, as

noted, this document was never filed of record and does not appear on the

docket.5    Thus, we are unable to determine when Appellant may have

received the letter or if he was informed of his rights under Turner/Finley

prior to the order that dismissed his PCRA petition.         Moreover, as an

appellate court, we may only consider facts that have been duly certified in

the record on appeal, and a document does not become part of the record

by merely appending it to a brief or reproduced record. Commonwealth v.

Jordan, 65 A.3d 318, 335 (Pa. 2013). Accordingly, the only document that

counsel filed of record is a handwritten praecipe withdrawing his appearance

that he filed on September 17, 2015, the day after the PCRA court sent

Appellant the Rule 907 notice. Certified Record, at Docket Entry 69.

       Based on the record before us, there was no motion to withdraw filed,

and the order permitting counsel to withdraw, which was contained within

the Rule 907 notice, is not responsive to any properly-filed motion. Thus,

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5
  In its brief, the Commonwealth acknowledges that while the PCRA court
and Appellant reference the Turner/Finley letter, it does not appear on the
docket. Commonwealth’s Brief at 5.



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counsel did not correctly withdraw and Appellant was not properly apprised

of his rights as required under Turner/Finley.

     Accordingly, in light of these deficiencies, we vacate the PCRA court’s

order.   We remand this case to permit counsel to properly file a no-merit

letter and provide Appellant the rights he is afforded under Turner/Finley

and its progeny.

     Order vacated. Case remanded for further proceedings consistent with

this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




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