J-S12005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWARD WILLIAM PETTERSEN, JR.

                            Appellant                 No. 526 EDA 2014


                 Appeal from the PCRA Order January 28, 2014
                 In the Court of Common Pleas of Pike County
              Criminal Division at No(s): CP-52-CR-0000425-2009


BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

DISSENTING STATEMENT BY MUNDY, J.:                     FILED JUNE 27, 2016

        I respectfully dissent from the learned Majority’s decision to vacate

and remand for appointment of new counsel.         Although I agree that the

PCRA court took “mutually exclusive positions” to a certain degree, it does

not follow that the PCRA court violated Appellant’s rule-based right to

counsel. Majority Memorandum at 4.

        “[A] criminal defendant has a right to representation of counsel for

purposes of litigating a first PCRA petition through the entire appellate

process.”    Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super.

2009) (en banc); accord Pa.R.Crim.P. 904(C). As the Majority points out,

under Rule 908(C), whenever the PCRA court convenes an evidentiary

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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hearing, the PCRA court “shall provide the defendant an opportunity to have

counsel.” Pa.R.Crim.P. 908(C); see also generally Majority Memorandum

at 4. However, this Court has recognized that there are limits on this rule-

based right.

              [W]hen counsel has been appointed to represent a
              petitioner in [PCRA] proceedings as a matter of right
              under [Rule 904(C)] and when that right has been
              fully vindicated by counsel being permitted to
              withdraw under the procedure authorized in
              Turner[/Finley], new counsel shall not be appointed
              and the petitioner, or appellant, must thereafter look
              to his or her own resources for whatever further
              proceedings there might be.

Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote

omitted); accord Commonwealth v. Rykard, 55 A.3d 1177, 1183 n.1 (Pa.

Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).1

       As noted above, PCRA counsel was appointed as required by Rule

904(C).     Subsequently, PCRA counsel was permitted to withdraw from

representation pursuant to the procedures outlined in Turner/Finley.

Appellant did not challenge that order.          Once that order became final, the

PCRA court was not permitted to appoint a second PCRA counsel for

Appellant. See id.

       I am aware of one order from our Supreme Court in Commonwealth

v. Torres, 101 A.3d 781 (Pa. 2014) (per curiam) which involved a similar
____________________________________________
1
  Our Supreme Court has cited to Maple’s proposition with approval.
Commonwealth v. Jette, 23 A.3d 1032, 1042 (Pa. 2011).



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posture.   There, the petitioner was appointed counsel for his first PCRA

petition, counsel was permitted to withdraw under Turner/Finley, and the

PCRA court issued its Rule 907 notice.       Id. at 781.    In response, the

petitioner “filed a pro se pleading styled as an amended PCRA petition,

raising two new claims[.]”   Id.    The PCRA court granted the petitioner an

evidentiary hearing on his new claims, and he requested appointment of

counsel for the hearing, which the PCRA court denied on the grounds that

prior counsel had already been permitted to withdraw.      Id.   Our Supreme

Court concluded that once the PCRA court accepted the petitioner’s amended

petition and granted an evidentiary hearing on same, the PCRA court was

required to appoint counsel. Id.

      I conclude Torres does not alter the proper resolution of this case for

two reasons. First, Torres was a per curiam order entered by our Supreme

Court on its allocatur docket. It is axiomatic that such “per curiam orders

have no stare decisis effect.”     Commonwealth v. Thompson, 985 A.2d

928, 937 (Pa. 2009) (citation omitted). As such, Torres is not binding on

this panel. More critically, in this case, I have reviewed Appellant’s pro se

response to the PCRA court’s Rule 907 notice, and Appellant did not raise

any new claims, thus rendering this case factually and legally distinguishable

from Torres, and the Majority does not dispute this important distinction.

Majority Memorandum at 2.




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      Based on the foregoing, I conclude that Appellant was not entitled to

new counsel once the PCRA court convened its hearing on Appellant’s

response to its Rule 907 notice. I have also reviewed Appellant’s remaining

claims on appeal and conclude that they do not warrant relief. Accordingly,

I would affirm the PCRA court’s January 28, 2014 order.      I respectfully

dissent.




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