J. S25042/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                     v.                    :
                                           :
RAYMOND LEROY ERWIN, JR.,                  :         No. 1672 WDA 2015
                                           :
                          Appellant        :


                Appeal from the Order Entered October 6, 2015,
               in the Court of Common Pleas of Jefferson County
               Criminal Division at No. CP-33-CR-0000581-2011


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.


DISSENTING MEMORANDUM STATEMENT BY FORD ELLIOTT, P.J.E.:

FILED: May 27, 2016

      I respectfully dissent.         I agree with the PCRA court that its

consideration of appellant’s premature petition on the merits represents, in

the real world, judicial interference with the presentation of appellant’s

collateral claims.    I would find that appellant’s refiling of his amended

petition one week after receiving this court’s decision informing the PCRA

court of its procedural misstep is timely filed under § 9545(b)(i)(1) and allow

the appeal from the PCRA court’s denial of relief.

      What is even more troubling to me is that after this court affirmed the

judgment of sentence on November 12, 2013, and effectively the ball was

once again in the lower court, on January 30, 2014, counsel filed a motion

for leave to file an amended PCRA petition which the lower court granted.
J. S25042/16


On February 11, 2014, Counsel filed the amended petition raising the

ineffectiveness claims anew.     I would consider this amended petition as

timely filed and proper once the direct appeal was resolved. I recognize that

this court then, on appeal from the denial of the amended petition,

determined that the PCRA court lacked jurisdiction to consider even the

amended petition because it was initially filed pro se during the pendency of

the direct appeal. While I might disagree with this analysis under the facts

of this case, what seems clear from the panel’s May 6, 2015 Memorandum is

that further proceedings in line with what occurred here were anticipated.

The panel vacated the PCRA court’s order denying relief and remanded the

case.   I do not believe that our court’s prior decision precludes our

consideration of this appeal on its merits.




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