J-S08018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    TODD MEQUIM ANDERSON                       :
                                               :
                       Appellant               :   No. 808 WDA 2019

                  Appeal from the Order Entered April 3, 2019
     In the Court of Common Pleas of Clearfield County Criminal Division at
                       No(s): CP-17-CR-0000802-2017


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                            FILED MARCH 10, 2020

        Todd Mequim Anderson (Appellant) appeals, pro se, from the order1

entered in the Clearfield County Court of Common Pleas granting the petition

to withdraw filed by Appellant’s post-conviction counsel. Because we conclude

the order on appeal is interlocutory, we quash this appeal.

        On December 7, 2017, Appellant entered an open guilty plea to four

counts of possession with intent to deliver controlled substances (cocaine),2

and related offenses. On March 5, 2018, the trial court sentenced him to an

aggregate term of eight to 16 years’ imprisonment. Appellant did not file a

direct appeal.
____________________________________________


1 We have amended the caption to reflect that the notice of appeal was filed
from the PCRA court’s April 3, 2019, Order. See Notice of Appeal, 5/31/19.

2   35 P.S. § 780-113(a)(30).
J-S08018-20



        Rather, on July 25, 2018, Appellant filed a timely pro se petition

pursuant to the Post Conviction Relief Act (PCRA),3 raising numerous

allegations concerning the ineffective assistance of plea counsel. Counsel was

appointed, and on February 28, 2019, filed a petition to withdraw and

Turner/Finley4 no-merit letter. By order entered April 3, 2019, the PCRA

court granted counsel’s petition to withdraw.

        Thereafter, on April 17, 2019, Appellant filed a pro se objection to the

April 3rd order, challenging the propriety of counsel’s no-merit letter, as well

as the PCRA court’s failure to issue notice of its intent to dismiss the petition

pursuant to Pa.R.Crim.P. 907. The PCRA court then issued Rule 907 notice on

April 25, 2019. However, before the PCRA court entered an order dismissing

Appellant’s petition, Appellant filed a notice of appeal from the April 3, 2019,

order.5 Subsequently, on September 11, 2019, the PCRA court entered an


____________________________________________


3   42 Pa.C.S. §§ 9541-9546.

4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5 We note the notice of appeal was docketed on May 31, 2019, more than 30
days after entry of the court’s April 3rd order. Docket No. CP-17-CR-0000802-
2017, 5/31/19. See Pa.R.A.P. 903(a) (notice of appeal must be filed within
30 days after entry of order on appeal). However, the certified record includes
a letter from the Deputy Prothonotary of Clearfield County to this Court, which
stated that, when the notice of appeal was first received in the PCRA court,
Appellant did not include the filing fee or request permission to proceed in
forma pauperis (IFP). See Letter, 11/8/19. The Clearfield County Deputy
Prothonotary attached a copy of a letter the PCRA court sent to Appellant
notifying him that it could not process his notice of appeal “received . . . on



                                           -2-
J-S08018-20



order dismissing Appellant’s PCRA petition.6

       On appeal, Appellant challenges both the dismissal of the claims raised

in his PCRA petition, as well as the PCRA court’s grant of counsel’s petition to

withdraw. However, because Appellant filed an appeal prematurely from an

interlocutory order, we are constrained to quash this appeal.                   See

Commonwealth v. Tchirkow, 160 A.3d 798, 803 (Pa. Super. 2017)

(appellate court can consider appealabilty of order sua sponte because it

“directly implicates the jurisdiction of the court”) (citation omitted).

       The Pennsylvania Rules of Appellate Procedure provide, in relevant part:

       [A]n appeal may be taken from: (1) a final order or an order
       certified as a final order (Pa.R.A.P. 341); (2) an interlocutory order
       as of right (Pa.R.A.P. 311); (3) an interlocutory order by
       permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4)
       a collateral order (Pa.R.A.P. 313).

Tchirkow, 160 A.3d at 803 (citation omitted).


____________________________________________


May 1, 2019” until he paid the required fee or submitted IFP paperwork. Letter
from Clearfield County to Appellant, 5/6/19.

       It is well-established that “[t]he clerk of courts . . . lacks the authority
to reject, as defective, a timely notice of appeal.” Commonwealth v.
Williams, 106 A.3d 583, 588 (Pa. 2014). Indeed, Pennsylvania Rule of
Appellate Procedure 905 provides that “[u]pon receipt of the notice of appeal
the clerk shall immediately stamp it with the date of receipt, and that date
shall constitute the date when the appeal was taken[.]” Pa.R.A.P. 905(a)(3).
Therefore, in the present case, we conclude Appellant filed a timely notice of
appeal on May 1, 2019, from the court’s April 3, 2019, order.

6The docket indicates the September 11, 2019, order was “misplaced.”
Docket No. CP-17-CR-0000802-2017, at 9/11/19. Thus, a substitute order
was entered on November 7, 2019.


                                           -3-
J-S08018-20



        Here, Appellant filed a notice of appeal from the PCRA court’s April 3,

2019, order which granted counsel’s petition to withdraw. Clearly, that order

is not a final order since, at the time it was filed, Appellant’s PCRA petition

was still outstanding. See Pa.R.A.P. 341(b) (final order is any order that:

“disposes of all claim and of all parties” or in entered as final order under

subsection (c)). Furthermore, the April 3rd order is not an interlocutory order

which may be appealed as of right pursuant to Pa.R.A.P. 311, or one from

which this Court granted permission to appeal pursuant to Pa.R.A.P. 312 and

1311.

        Thus, Appellant may proceed with this appeal only if we determine the

PCRA court’s April 3rd order was a collateral order. Pursuant to Rule 313, an

aggrieved party may file an appeal from a collateral order as of right.

Pa.R.A.P. 313(a). The Rule defines a collateral order as:

        an order separable from and collateral to the main cause of action
        where the right involved is too important to be denied review and
        the question presented is such that if review is postponed until
        final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313(b).

        We conclude the PCRA court’s order granting counsel’s petition to

withdraw is not an appealable collateral order. In Commonwealth v. Wells,

719 A.2d 729 (Pa. 1998), the Pennsylvania Supreme Court held that an order

denying PCRA counsel’s request to withdraw, based on a purported conflict

of interest, did not qualify as a immediately appealable collateral order

because the claim would not be irreparably lost if denied review. The Court


                                      -4-
J-S08018-20



opined:

       Appellant’s claim that he is entitled to “conflict-free” PCRA counsel
       will not be irreparably lost if the order denying the Petition to
       Withdraw is not reviewed at this time. Since Appellant has a right
       of appeal if the PCRA court denies his petition, the order denying
       the Petition to Withdraw, and consequently the merits of the
       conflict issue, can be reviewed if or when Appellant files an appeal
       from the court’s PCRA decision. If it is determined that the PCRA
       court improperly failed to remove PCRA counsel due to a conflict
       of interest, any right to conflict-free PCRA counsel is not lost since
       the defendant may be granted a new PCRA hearing and new
       counsel. Thus, since Appellant’s claimed right would not be
       irreparably lost if review of the order were postponed until final
       judgment, the court’s order denying the Petition to Withdraw is
       not appealable under the collateral order doctrine.

Id. at 731 (footnotes omitted).

       Although Wells reviewed an order denying counsel’s petition to

withdraw, the same analysis applies to an order granting counsel’s petition

to withdraw. Accordingly, we are constrained to quash this appeal.

       Furthermore, we note that after Appellant filed the notice of appeal

from the April 3rd order, the PCRA court entered an order dismissing

Appellant’s petition.7 However, the PCRA court had no jurisdiction to enter

that order once Appellant filed a notice of appeal. Pursuant to Pennsylvania

Rule of Appellate Procedure 1701, “after an appeal is taken . . . the [PCRA]

court . . . may no longer proceed further in the matter.” Pa.R.A.P. 1701(a).

____________________________________________


7  As noted supra, the PCRA court initially entered dismissal order on
September 11, 2019, but later entered a substitute order on November 7,
2019, when the September order was misplaced. In either case, any appeal
filed by Appellant now would be outside the 30-day appeal period. See
Pa.R.A.P. 903.


                                           -5-
J-S08018-20



     Accordingly, because we conclude the order on appeal is interlocutory

and unappealable, we quash this appeal. Moreover, we vacate the court’s

September 11, 2019, and November 7, 2019, orders purporting to dismiss

Appellant’s PCRA petition. Upon remand, we direct the PCRA court to reissue

Appellant Rule 907 notice of its intent to dismiss the PCRA petition, so that

Appellant may have the opportunity to file a timely response.

     Appeal quashed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2020




                                    -6-
