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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                      v.                     :
                                             :
ARIEL COLON, JR.,                            :          No. 422 MDA 2017
                                             :
                           Appellant         :

                 Appeal from the PCRA Order, February 2, 2017,
               in the Court of Common Pleas of Schuylkill County
                Criminal Division at No. CP-54-CR-0001391-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 05, 2017

        Ariel Colon, Jr. appeals from the February 2, 2017 order denying his

petition   filed    pursuant   to   the   Post-Conviction   Relief   Act   (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this appeal, Jeffrey M.

Markosky, Esq. (“PCRA counsel”), has requested leave to withdraw in

accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). For

the reasons that follow, we deny PCRA counsel’s request to withdraw and

remand this matter so that PCRA counsel may take appropriate action in

accordance with our decision.

        Appellant    was   found    guilty   of   aggravated   assault,    recklessly

endangering another person, and simple assault1 and sentenced to an


1   18 Pa.C.S.A. §§ 2702, 2705, and 2701, respectively.
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aggregate term of 9 to 20 years’ imprisonment on March 19, 2015.          On

November 20, 2015, a panel of this court affirmed appellant’s judgment of

sentence, and appellant did not seek allowance of appeal with our supreme

court. See Commonwealth v. Colon, 134 A.3d 500 (Pa.Super. 2015). On

June 27, 2016, appellant filed a pro se PCRA petition alleging the

ineffectiveness of his trial counsel, and PCRA counsel was appointed to

represent him. PCRA counsel filed an amended PCRA petition on appellant’s

behalf on December 15, 2016, and an evidentiary hearing was held on

January 19, 2017. Following the hearing, the PCRA court entered an order

on February 2, 2017 denying appellant’s petition.        This timely appeal

followed.   Thereafter, on April 6, 2017, PCRA counsel subsequently filed a

“no-merit” letter and a petition to withdraw. Appellant did not file a pro se

response to PCRA counsel’s petition.

     Preliminarily, we must address PCRA counsel’s request to withdraw

from representation.   Upon review, we find that PCRA counsel’s filing with

this court, while couched as a brief pursuant to Anders v. California, 386

U.S. 738 (1967), satisfied the technical requirements of Turner/Finley.2

However, our review of the docket indicates that although PCRA counsel




2See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004) (holding that although “[a] Turner/Finley no merit letter is the
appropriate filing [in a PCRA proceeding,] . . . because an Anders brief
provides greater protection to the defendant, we may accept an Anders
brief in lieu of a Turner/Finley letter”), appeal denied, 882 A.2d 477 (Pa.
2005).


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requested transcripts of the proceedings when he filed a notice of appeal,

the notes of testimony from the January 19, 2017 PCRA hearing were never

transcribed.   In Commonwealth v. Flowers, 113 A.3d 1246 (Pa.Super.

2015), a panel of this court addressed whether an appointed counsel who

sought to withdraw under Anders failed to fulfill his duty to search the

record for any non-frivolous issues, where some of the transcripts were

missing from the record.       Id. at 1249-1250.   The Flowers court denied

appointed counsel’s petition to withdraw and remanded, noting that

Pennsylvania law makes clear neither counsel nor this court can satisfy

Anders if counsel fails to supply this court with a complete record. Id. at

1250 (reasoning that, “[w]ithout these notes of testimony, Counsel could not

have fulfilled his duty to review the entire record for any non-frivolous

issues.” (citations omitted)).    Similarly, in the instant matter, we cannot

conclude that PCRA counsel has fulfilled his obligations pursuant to

Turner/Finley. Accordingly, we deny PCRA counsel’s petition to withdraw

and remand this matter with instructions for PCRA counsel to obtain the

notes of testimony from the January 19, 2017 hearing and to file an

advocate’s brief or another Turner/Finley “no-merit” letter and petition to

withdraw, following a review of the complete record.

      Petition for leave to withdraw as counsel denied.      Case remanded.

Panel jurisdiction retained.




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