J-S61004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM PLUMMER                            :
                                               :
                       Appellant               :   No. 2042 EDA 2018

              Appeal from the PCRA Order Entered June 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003689-2014,
              CP-51-CR-0003690-2014, CP-51-CR-0015155-2013


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                               April 1, 2020

       William Plummer appeals pro se from the order that dismissed his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”) in three

underlying cases.1 We vacate and remand for further proceedings.


____________________________________________


1 Appellant filed one notice of appeal listing all three docket numbers in
violation of our Supreme Court’s decision in Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018) (mandating separate notices of appeal at each docket
implicated by the appealed-from order). However, the PCRA court repeatedly
advised Appellant that he could appeal its ruling by filing a single notice of
appeal. See N.T. 6/19/18, at 150, 153 (referencing “an appeal” and “the
appeal” in discussing Appellant’s appeal rights) (emphases added). We have
held that “such misstatements as to the manner that [the a]ppellant could
effectuate an appeal . . . amount to a breakdown in court operations such that
we may overlook the defective nature of [the] timely notice of appeal rather
than quash pursuant to Walker.” Commonwealth v. Stansbury, 219 A.3d
157, 160 (Pa.Super. 2019). Therefore, we shall address Appellant’s claims
rather than quash this appeal.

* Former Justice specially assigned to the Superior Court.
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      The trial court offered the following summary of the facts underlying

Appellant’s convictions for his direct appeal:

             On September 29, 2013, at around 1:00 a.m., Ronald Elliot
      left his girlfriend, Kandis Fowler’s, home at 3601 Conshohocken
      Avenue and went to the apartment building’s parking lot.
      [Appellant] and two other men, holding fake police badges,
      jumped out of the bushes and yelled “Freeze, Police.” Elliot ran
      out of the parking lot and across the street as the three men
      chased him. [Appellant] stopped pursuing Elliot and acted as a
      lookout standing on the sidewalk on the parking lot side of the
      street while the other two men caught Elliot across the street.
      After the two men hit Elliot four or five times in the head with a
      firearm, cutting him on the head, the two men took Elliot’s watch,
      money and car keys. The men joined back up with [Appellant]
      and all three men ran to the parking lot. Elliot saw [Appellant]
      drive off in Fowler’s Ford Expedition.

            On February 5, 2014, after [Appellant] had been arrested
      and charged with [the] robbery of Elliot, Elliot received multiple
      phone calls from [Appellant].       [Appellant] threatened Elliot,
      explaining that if Elliot attended the next court date [Appellant]
      was going to firebomb the homes of Elliot’s mother, girlfriend, and
      grandparent and kill Elliot. . . .

            On February 9[,] 2014, Valerie and Russell Fowler, Kandis
      Fowler’s parents, were living in a row home on Washington Lane.
      At about 4:00 a.m., Valerie Fowler heard a “bang” and smelled
      smoke. Russell Fowler went downstairs and saw a small fire in
      the back yard. After the fire was extinguished, Russell Fowler
      noted that the first floor back window was broken and saw a bottle
      with a wick in it in the back yard.

            Detective Timothy Brooks of the Philadelphia Police’s Bomb
      Disposal Unit and an expert in arson explosives arrived at the
      Fowler’s home on Washington Lane shortly after the fire was
      extinguished. Outside the back of the house, Detective Brooks
      observed two bottles with wicks in them, one intact and the other
      shattered, which he believed to be Molotov cocktails. Detective
      Brooks observed strike marks on the back window and a broken
      bottle at the bottom of the basement steps that indicated that a
      Molotov cocktail had struck the house and fallen to the ground.
      The intact bottle contained liquid and a cloth wick, which smelled

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      of gasoline. Detective Brooks recovered the bottles, wicks, and
      liquid.

            On February 9, 2014, Detective Kevin Sloan requested that
      Philadelphia prison authorities search [Appellant’s cell]. The
      prison authorities recovered a cell phone in [Appellant’s] cell.
      According to Cricket Communications’ records, the cell phone
      recovered from [Appellant’s] cell had been used to call Elliot four
      times on February 5, 2014.

            [Appellant] testified on his own behalf. [He] asserted that
      in the first week of September 2013, Elliot gave [Appellant]
      $15,000 to purchase drugs for him. [Appellant] kept the money
      but did not purchase the drugs. [Appellant] asserted that on
      September 29, 2013, he was not on Conshohocken Avenue but
      instead was in Norristown. [Appellant] explained that he was
      unable to run because he was shot many years before.
      [Appellant] admitted that he had called Elliot but claimed the call
      was to arrange to return Elliot’s money in exchange for Elliot not
      appearing at trial.

Trial Court Opinion, 6/4/15, at 2-4 (citations and footnotes omitted).

      Appellant was charged with numerous crimes at the above-captioned

docket numbers. Ultimately, a jury convicted him of one or more counts each

of conspiracy, aggravated assault, robbery, robbery of a motor vehicle, arson,

risking a catastrophe, intimidation of a victim, retaliation against a victim, and

contraband (non-controlled substance).       Appellant received an aggregate

sentence of thirty to sixty years of incarceration. On direct appeal, this Court

affirmed, and our Supreme Court denied Appellant’s petition for allowance of

appeal. See Commonwealth v. Plummer, 153 A.3d 1110 (Pa.Super. 2016)

(unpublished memorandum), appeal denied, 159 A.3d 938 (Pa. 2016).

      Appellant filed a timely pro se PCRA petition, and counsel was appointed.

Counsel filed an amended petition, including only four of the many claims that

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Appellant raised in his pro se filings. Displeased by the omissions, Appellant

applied for the appointment of new counsel. Appellant also filed a letter in

which he contended that PCRA counsel had a duty to pursue each and every

claim that Appellant wished to raise, or to file “a hybrid Turner/Finley letter”2

explaining why there was no merit in the claims he chose not to include in the

amended petition. Case Correspondence, 5/4/18, at 1. Citing Appellant’s lack

of faith in his representation, counsel sought to withdraw and have the PCRA

court appoint new counsel or hold a hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a waiver of the right to counsel

is sought at the post-conviction and appellate stages, an on-the-record

determination should be made that the waiver is a knowing, intelligent, and

voluntary one.”). For reasons not apparent from the certified record, the PCRA

court denied the request without conducting a Grazier hearing. See Order,

5/8/18.

       Appellant next filed a motion to proceed pro se, which the PCRA court

addressed at the outset of the hearing it had scheduled on the claims raised

in counsel’s amended petition. Appellant informed the court that he did not

want to represent himself, but rather he desired to have counsel pursue all of

the claims that he wished to raise. N.T. PCRA Hearing, 6/11/18, at 10. The


____________________________________________


2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (explaining procedure
for PCRA counsel to withdraw from the representation where no meritorious
issues exist); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc) (same).

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PCRA court deferred addressing that issue, instead having PCRA counsel

conduct the questioning of witnesses in connection with the issues raised in

the counseled petition. Id. at 10-11. At the end of the hearing, the PCRA

court scheduled another date for Appellant to present additional witnesses.

      In between hearings, Appellant filed another motion to proceed pro se,

citing “irreconcilable differences and the lack of communication on strategy.”

Motion, 6/14/18, at 1. At the second PCRA hearing, the PCRA court did not

conduct a Grazier hearing or otherwise address Appellant’s renewed request

for self-representation. Instead, counsel continued to represent Appellant at

the second hearing, presenting and cross-examining witnesses. Following the

close of evidence and the arguments of counsel, the PCRA court invited

Appellant to state “what it is that you want preserved for the record[.]” N.T.

PCRA Hearing, 6/19/18, at 143. Appellant indicated, inter alia, that he wanted

the pro se PCRA claims that counsel omitted from the amended petition to be

“exhausted.”   Id. at 143-44.   At that point, the PCRA court conducted a

colloquy to determine whether Appellant wished to make a knowing and

voluntary waiver of his right to counsel. See N.T. PCRA Hearing, 6/19/18, at

145-51 (quoted in relevant part infra).     The PCRA court concluded that

Appellant desired to proceed pro se on appeal, and ultimately entered an order

allowing counsel to withdraw. See Order, 7/13/18.

      Appellant filed a timely pro se notice of appeal. The PCRA court did not

order him to file a Pa.R.A.P. 1925(b) statement of errors on appeal, and none


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was filed.   The PCRA court nonetheless authored an opinion pursuant to

Pa.R.A.P. 1925(a), in which it explained the reasons behind its conclusion that

the claims raised in counsel’s amended petition merited no relief.

      On appeal, Appellant presents many and varied claims of the ineffective

assistance of trial, direct appeal, and PCRA counsel, including both allegations

that were litigated in the PCRA court, and pro se contentions that were

abandoned by counsel in the amended petition. See Appellant’s brief at 4-8.

Additionally, Appellant argues that the PCRA court erred by accepting PCRA

counsel’s determination as to the lack of merit in the pro se claims without

requiring a Turner/Finley letter and conducting an independent review, and

by failing to allow him to create a proper record as to the merits of the

abandoned pro se claims by, e.g., opting not to order a Pa.R.A.P. 1925(b)

statement. Id. at 18. The relief Appellant seeks from this Court is a new trial

based upon the constitutionally-deficient performance of counsel, or, in the

alternative, remand to the PCRA court for the proper resolution of his

unlitigated claims. Id. at 11.

      We begin with our standard of review. “The standard of review of an

order dismissing a PCRA petition is whether that determination is supported

by the evidence of record and is free of legal error.”     Commonwealth v.

Williams, 220 A.3d 1086, 1090 (Pa.Super. 2019). “It is an appellant’s burden

to persuade us that the PCRA court erred and that relief is due.”




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Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)

(internal quotation marks and citation omitted).

       As we find the issue dispositive, we begin with Appellant’s claim that the

PCRA court erred in its manner of handling Appellant’s requests to pursue all

of the claims raised in his pro se PCRA petition and supplement thereto.3 The

following legal principles inform our decision.

       On a first PCRA petition, a petitioner is entitled to the assistance of

counsel to guarantee that he has “at least one meaningful opportunity to have

[his] issues reviewed.” Commonwealth v. Karanicolas, 836 A.2d 940, 945

(Pa.Super. 2003) (citations and internal quotation marks omitted).

       This Court has admonished, accordingly, that the point in time at
       which a trial court may determine that a PCRA petitioner’s claims
       are frivolous or meritless is after the petitioner has been afforded
       a full and fair opportunity to present those claims. Our [S]upreme
       [C]ourt has recognized that such an opportunity is best assured
       where the petitioner is provided representation by competent
       counsel whose ability to frame the issues in a legally meaningful
       fashion insures the [PCRA] court that all relevant considerations
       will be brought to its attention.

Commonwealth v. Hampton, 718 A.2d 1250, 1252 (Pa.Super. 1998)

(internal quotation marks and citations omitted). “When appointed, counsel’s

duty is to either (1) amend the petitioner’s pro se [p]etition and present the

petitioner’s claims in acceptable legal terms, or (2) certify that the claims lack



____________________________________________


3The issue is dispositive because, as the Commonwealth correctly notes, the
vast majority of the issues Appellant seeks to raise in this appeal were not
preserved for our review. See Commonwealth’s brief at 9-10.

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merit by complying with the mandates of Turner/Finley.” Commonwealth

v. Cherry, 155 A.3d 1080, 1083 (Pa.Super. 2017).

      If there are any issues of arguable merit, counsel must file an amended

petition, exercising professional judgment to determine which claims to raise

therein. This Court has held, in the context of a direct appeal, that a defendant

may not compel counsel to pursue even “nonfrivolous points requested by the

client, if counsel, as a matter of professional judgment, decides not to present

those points.”    Commonwealth v. Morrison, 173 A.3d 286, 292-93

(Pa.Super. 2017). Further, contrary to Appellant’s argument, counsel may

not, in the face of a client’s insistence upon pursing claims counsel deems

unworthy of pursuit, employ a hybrid approach of advancing some claims, but

arguing against the merits of others.     Id.   Rather, “when counsel and an

appellant disagree on which issues should be raised and/or briefed on appeal,

counsel must only raise and/or brief the issues that counsel believes,

consistent with counsel’s ethical duty, to be nonfrivolous.” Id.

      Upon such disagreement between attorney and client, the client “is free

to petition for the withdrawal of counsel in order for the [client] to attempt to

proceed pro se or with privately-retained counsel.” Id. Indeed, a “criminal

defendant has a constitutional right to represent himself” and it is error for a

court to ignore “a timely and unequivocal request” of a PCRA petitioner to

proceed pro se.      Commonwealth v. Robinson, 970 A.2d 455, 457

(Pa.Super. 2009). A court faced with a PCRA petitioner’s request to proceed


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pro se must make an on-the-record determination that the waiver of the right

to PCRA counsel is made knowingly, intelligently, and voluntarily.                See

Grazier, supra at 82.

      We now examine the facts of the instant case as revealed by the certified

record. After PCRA counsel filed the amended petition abandoning most of

Appellant’s pro se claims, but before the Commonwealth filed its response to

the amended petition, Appellant filed a thirteen-page letter disagreeing point-

by-point with counsel’s explanations for his professional assessment of the

claims.   See Case Correspondence, 4/24/18, at 1-13.             Appellant promptly

followed up with an application for new counsel, contending that PCRA

counsel’s amended petition was “defective” because he only included a

handful of his claims.   See Application for Relief for Appointment of New

Counsel and Objections to PCRA Counsel’s Defective Amended PCRA Petition,

4/27/18, at 3.

      Shortly thereafter, PCRA counsel filed a motion to withdraw. Therein,

counsel   noted   Appellant’s   recent    filings   in   which   he   expressed   his

dissatisfaction with counsel, indicated that he had ceased work on Appellant’s

case, and requested that the court either appoint new counsel or hold a

Grazier hearing to ascertain whether Appellant wished to proceed pro se.

See Motion to Withdraw as Counsel, 5/3/18, at 3-4. On May 8, the PCRA

court entered an order denying without explanation counsel’s motion to




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withdraw.    Order 5/8/18.     The PCRA court did not address or reference

Appellant’s pro se requests for counsel and to represent himself.

      On May 22, 2018, again citing his disagreements with counsel, Appellant

filed a motion to proceed pro se wherein he requested a Grazier hearing. See

Application for Relief Seeking Pro Se Status, 5/22/18, at 2-3. At the June 11,

2018 PCRA hearing, the court acknowledged Appellant’s pending motion, and

asked him on the record whether he wanted to represent himself. Appellant

responded “Well, you know . . . .” N.T. PCRA Hearing 6/11/18, at 7. The

PCRA court cut him off, asked for a yes or no answer. Id. Appellant replied

“No, not at all.”   Id.   The court then conducted the hearing with counsel

representing Appellant, scheduling a second date at its conclusion for

Appellant to present additional witnesses.

      Before the second hearing, Appellant filed another motion to proceed

pro se, citing “irreconcilable differences and the lack of communication on

strategy.” Motion, 6/14/18, at 1. At the June 19, 2018 hearing, the PCRA

court did not conduct a Grazier hearing or otherwise address Appellant’s

renewed request for self-representation.       Rather, after the presentation of

witnesses and arguments of counsel, the PCRA court invited Appellant to state

“what it is that you want preserved for the record[.]” N.T. PCRA Hearing,

6/19/18, at 143. Appellant indicated, inter alia, “claims that I filed in my initial

PCRA and my supplemental PCRA claim, I, J, L, N, O, R, T, U and Y I want

raised.   I don’t know why my lawyer isn’t raising them.          He is saying he


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believes there is no legal basis. I want these claims exhausted.” Id. at 143-

44. The following exchange ensued:

           THE COURT: . . . Counsel was appointed to represent you.
     The representation of Counsel for a PCRA is slightly different than
     when Counsel is appointed for trial.

           It is his responsibility to review your initial petition and it is
     his responsibility to litigate the issues that he believes have merit.

           Now, he’s filed the supplemental petition and we’ve had a
     hearing on the issues that he believes, in his professional opinion,
     have no merit. You have your statement on the record.

           If you want to continue, I mean, we already -- well, let me
     backtrack.

           We already went through, earlier last time that I saw you,
     whether or not you wished to represent yourself. So, this is the
     last chance before I send you back if you have a disagreement
     with your Counsel, you are certainly entitled to represent yourself
     and you would then be responsible for any subsequent motion.

           For instance, if I deny this petition then, if you want to
     represent yourself on appeal, you are welcome to do so. But I
     just have to ask you, as I told you before, I would have to ask
     certain questions to make sure that you understand the
     ramifications of representing yourself.

          So, when I last saw you on the 11th, you had indicated that
     you wished to have Counsel handle this hearing. The hearing is
     now over so I’m going to ask you the same question, do you want
     Counsel to continue to represent you or do you wish to represent
     yourself? You are always free to hire someone.

           THE DEFENDANT: Well, if I have him represent me, right,
     and he don’t raise these claims, would these claims be waived if I
     go to Federal Relief Court?

           THE COURT: Well, I’m not an expert on Federal Relief.
     Legally, they are waived for the State.




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           So, I cannot give you advice for the Federal system. I can
     only tell you that what has been preserved right now is what we
     had the hearing on. That’s an argument that you can make in
     Federal Court. You would have the transcript here available to
     you.

          THE DEFENDANT: Well, I have to represent myself.

          THE COURT: You don’t have to represent yourself. You are
     choosing to represent yourself?

          THE DEFENDANT: Yes. Yes.

          ....

            THE COURT: Do you understand that if I dismiss this
     petition, the next step is to file an appeal with Superior Court?

          THE DEFENDANT: Yes.

          THE COURT: Do you understand that if you would have to
     --

          THE DEFENDANT: Hold on. If you dismiss what?

          THE COURT: Your petition.

          THE DEFENDANT: Dismiss mine or [counsel’s]?

          THE COURT: I would be dismissing everything.

          THE DEFENDANT: We have to do all of this over again?

           THE COURT: No. I’m dismissing it. I can tell you right now
     I’m dismissing it. I will give your rights.

          ....

           THE DEFENDANT: Can I ask you one more question? You
     said something would be dismissed. What would be dismissed?

          THE COURT: I am dismissing your entire petition.




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          THE DEFENDANT: My whole PCRA. So, I have to come at
     you with another one?

          THE COURT: No. You would have to file -- that’s what I
     wanted to make sure that you understand.

           You have to file an appeal to Superior Court, would be your
     next step, within 30 days.

           Now, I will be giving you those rights no matter what. The
     only difference is, whether or not Counsel would be doing it for
     you or if he doesn’t do it, whether I have -- I mean Counsel would
     be, because he filed an amended petition, under the rules he
     would have to file the appeal for you.

           But if you want to represent yourself, I will permit him to
     withdraw and then you will be responsible for filing the appeal.
     And I want to make sure that you understand that now, so that
     you can make the necessary steps to file the appeal, to get the
     notes of testimony, and to prepare yourself for the appeal.

            So, it is your decision. Either Counsel continues or you
     represent yourself. Or again, as I told you, you are always free
     to hire another attorney.

           So, you’ve told me that you wish to represent yourself.

           THE DEFENDANT: Now, listen, see, my thing is I don’t want
     nothing waived. I want to exhaust everything.

           THE COURT: I understand that.

           So, you now have a choice. You’ve told me you want to
     represent yourself.

          THE DEFENDANT: I don’t understand. I don’t understand.
     Why would that --

            THE COURT: Sir, I’ve already told you, I am dismissing your
     petition. I find it without merit.

           So, do you wish --

           THE DEFENDANT: Well --

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            THE COURT: No. It is my turn to talk.

           Do you wish to represent yourself on appeal or do you want
      Counsel to continue?

             THE DEFENDANT: If I represent myself, you dismissing this
      petition, his petition?

           THE COURT: I’m dismissing it no matter who represents
      you. I find it has no merit.

           THE DEFENDANT: Okay. Well, I would like to represent
      myself.

N.T. PCRA Hearing, 6/19/18, at 145-51.

      Comparing the above-referenced case law with the transcript from the

June 19, 2018 hearing, it is clear that the PCRA court properly informed

Appellant about his rights and counsel’s obligations. Counsel had no obligation

to raise claims that he, in his professional judgment, deemed unworthy of

pursuit. See Morrison, supra at 292-93.      Nor, given his decision to pursue

a number of issues he determined to have potential merit, was it proper for

him to file a partial Turner/Finley letter as to the claims he chose to forgo.

See Morrison, supra at 292-93. Further, the PCRA court properly made an

inquiry, in accordance with Grazier, as to Appellant’s desire to proceed pro

se and the rights and responsibilities attendant with self-representation.

      However, we are constrained to conclude that the PCRA court waited

too long to address Appellant’s repeated requests to represent himself. The

on-the-record colloquy conducted by the PCRA court at the conclusion of the

hearing leaves no doubt that, while Appellant preferred to have the assistance

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of counsel, he would rather represent himself if he could not compel counsel

to litigate all of the claims he wished to raise.     Appellant’s priority was to

“exhaust” all of the claims raised in his pro se petition and supplement, and

he would choose whatever course of action was necessary to avoid waiving

any of them.

      Had the PCRA court conducted the full Grazier colloquy when Appellant

and counsel first brought their disagreements to the court’s attention,

Appellant would have been able to litigate any and all of his issues and

preserve them for this Court’s review. By waiting to conduct the colloquy until

the hearing was concluded and only the issues raised in counsel’s amended

petition had been preserved, the PCRA court placed Appellant in a position to

achieve none of his goals upon electing to proceed pro se.

      Further, as Appellant contends that PCRA counsel failed to properly

litigate the claims that he did pursue at the PCRA hearings, we decline to rule

on the merits of those claims in this appeal.       On remand, Appellant may

attempt to present the PCRA court with the additional evidence that he claims

PCRA counsel neglected to offer. See, e.g., Appellant’s brief at 6 (contending

that PCRA counsel failed to investigate and subpoena an identified alibi

witness).

      Accordingly, we conclude that the PCRA court erred in failing to conduct

a full Grazier hearing when it was first presented with the issue of Appellant’s

desire to exercise his right to have his day in court as to all of his PCRA claims.


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We therefore vacate the order dismissing his petition, and remand for

Appellant to file, pro se,4 an amended petition raising each claim he wishes

the PCRA court to resolve, including those that may have been litigated prior

to this appeal. It is for the PCRA court to determine the appropriate procedure

for resolving any claims in the amended petition that it had not previously

addressed, and whether an additional hearing is necessary. Should Appellant

find himself aggrieved after the PCRA court issues a final order resolving

Appellant’s additional claims, Appellant will be free to appeal from that order

and challenge the PCRA court’s rulings both prior and subsequent to the

instant appeal.

       Order vacated. Case remanded for further proceedings.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/20


____________________________________________


4 As discussed supra, PCRA counsel was under no obligation to pursue all of
Appellant’s pro se claims in addition to the claims counsel deemed worthy of
pursuit.   See Commonwealth v. Morrison, 173 A.3d 286, 292-93
(Pa.Super. 2017). Thus, Appellant is not entitled to the appointment of new
counsel on remand, but may either retain private counsel or proceed pro se.
Id.

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