J-S32036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WALTER M. YOUNG                            :
                                               :
                       Appellant               :   No. 1433 EDA 2018

                     Appeal from the Order May 25, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0707101-2001.


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 28, 2020

        Walter M. Young appeals pro se from the order that dismissed as

untimely his petition filed pursuant to the Post Conviction Relief Act (PCRA).

42 Pa.C.S.A. §§ 9541-46. We reverse the PCRA court’s order, and remand

for the appointment of counsel.

        On November 26, 2002, a jury convicted Young of second-degree

murder and related charges. Young was charged with the offenses as a result

of his participation in an armed robbery in which the victim was fatally shot

by a co-defendant.          Immediately following the verdict, the trial court

sentenced Young to life in prison for his murder conviction. On March 12,

2003, the trial court imposed an aggregate term of 7½ - 15 years of

imprisonment for the remaining convictions, to be served consecutively.

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*   Retired Senior Judge assigned to the Superior Court.
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Young filed a post-sentence motion, which was denied by operation of law on

July 14, 2003.

      Young filed an appeal to this Court. By order entered December 23,

2004, we granted the Commonwealth’s motion to quash the appeal as

untimely filed. On April 11, 2005, Young filed a timely PCRA petition and the

PCRA court appointed counsel. PCRA counsel filed an amended petition in

which he sought reinstatement of Young’s direct appeal rights nun pro tunc.

By order entered December 7, 2006, the PCRA court reinstated Young’s direct

appeal rights.

      On December 27, 2006, Young filed an appeal nunc pro tunc to this

Court. In an unpublished memorandum filed on October 29, 2009, this Court

rejected Young’s challenged to the sufficiency of the evidence supporting his

convictions. Commonwealth v. Young, 987 A.2d 828 (Pa. Super. 2009).

Although Young also challenged trial counsel’s ineffectiveness for failing to

object to prosecutorial misconduct during the Commonwealth’s closing

argument, we found this claim must await collateral review.           See id.,

unpublished memorandum at 1 n.1. On April 13, 2010, our Supreme Court

denied Young’s petition for allowance of appeal. Commonwealth v. Young,

992 A.2d 889 (Pa. 2010). Young did not seek further review.

      On January 16, 2018, Young filed the pro se PCRA petition at issue. In

this petition, Young claimed he received an illegal sentence, and raised a claim

of ineffectiveness based on newly discovered evidence of trial counsel’s mental

infirmities. On March 26, 2018, the PCRA court issued a Pa.R.Crim.P. 907

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notice of its intent to dismiss Young’s petition without a hearing. Young did

not file a response, but rather filed a premature appeal to this Court. 1 By

order entered May 25, 2018, the PCRA court dismissed Young’s petition. Both

Young and the PCRA court have complied with Pa.R.A.P. 1925.

              A. Did the [PCRA] court err when dismissing [Young’s]
                 petition as facially untimely as to relief under 42
                 Pa.C.S.A. § [9545(b)(1)(ii)] without having a hearing?

              B. Did trial counsel’s mental instabilities influence the
                 effectiveness of his legal abilities and performance
                 which greatly undermine the outcome of [Young’s]
                 trial proceedings?

Young’s Brief at 3.

       This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

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

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

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).

       Although this Court would normally first address the timeliness of

Young’s 2018 PCRA petition, we note that the PCRA court should have treated

this petition as Young’s first petition for post-conviction relief, since his
____________________________________________


1  Pa.R.A.P. 905(a)(5) provides that a “notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof.” Thus, even
though he filed his notice of appeal prior to the PCRA court’s order dismissing
his PCRA petition, the appeal is properly before us.


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previous petition was filed in order to reinstate his direct appeal rights, and

that relief was granted. See Commonwealth v. Callahan, 101 A.3d 118,

122 (Pa. Super. 2014) (explaining that when a PCRA petitioner’s direct appeal

rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent

PCRA petition will be considered his first PCRA petition for timeliness

purposes).

      Moreover,   although facially   untimely, Young is     entitled to   the

appointment of counsel to assist him in determining whether a time-bar

exception applies. Commonwealth v. Smith, 818 A.2d 494 (Pa. 2003). In

Smith, our Supreme Court agreed with decisions from this Court and held

that Pa.R.Crim.P. 904 “mandates that an indigent petitioner, whose first PCRA

petition appears untimely, is entitled to the assistance of counsel in order to

determine whether any of the exceptions to the one-year time limitation

apply.” Id. at 500-01 (citing Commonwealth v. Ferguson, 722 A.2d 177

(Pa. Super. 1998)).

      Here, Young is clearly indigent, as he was granted permission to proceed

with this appeal in forma pauperis.      Thus, the PCRA court should have

appointed counsel to assist Young in his pursuit of post-conviction relief. We

therefore reverse the PCRA court’s order denying his pro se PCRA petition and

remand for the appointment of counsel.

      Order reversed.     Case remanded with instructions.         Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/20




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