J.S52042/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

GEORGE DALIE

                           Appellant                  No. 1267 EDA 2014


                   Appeal from the PCRA Order April 15, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004044-2006

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

DISSENTING STATEMENT BY FITZGERALD, J.:            FILED OCTOBER 15, 2014

        I respectfully dissent.   There is no dispute that Appellant filed the

underlying pro se PCRA petition more than nine months after the PCRA’s

mechanical one-year time limitation expired.        Contrary to the majority,

however, I believe Appellant’s alleged attempts to communicate with direct

appeal counsel and hold counsel to his duty to convey when a petition for

allowance of appeal has been denied may constitute reasonable efforts.

See e.g. Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007)

(noting PCRA petitioner’s writing PCRA court and Superior Court may

constitute reasonable diligence); Commonwealth v. Carr, 768 A.2d 1164

(Pa. Super. 2001) (holding that mere allegation of counsel’s ineffectiveness

*
    Former Justice specially assigned to the Superior Court.
J.S52042/14


was insufficient to avoid PCRA time bar, where phone call to counsel or clerk

of courts would have revealed counsel’s failure to file appeal). Furthermore,

the exercise of due diligence by a petitioner when faced with allegations of

counsel’s abandonment may require fact finding by the PCRA court.        See

Bennett, 930 A.2d at 1274.

     Instantly, the PCRA court did not determine when Appellant attempted

to communicate with counsel, when counsel responded, or if counsel failed

to respond.   Such facts, in my view, are critical to distinguish reasonable

efforts to protect one’s PCRA rights from a non-diligent discovery of the

PCRA run date despite counsel’s alleged abandonment during the direct

appeal.1 Therefore, I would remand for an evidentiary hearing to determine

whether Appellant’s facially untimely PCRA was excused by his attempts to

discern when his conviction became final.


1
  The record establishes that direct counsel abandoned Appellant, when after
requesting an extension of time, he failed to file a timely appellate brief in
this Court. See Commonwealth v. Dalie, 2392 EDA 2007 (unpublished
memorandum) (Pa. Super. Oct. 1, 2012).             Appellant’s PCRA petition
contained further allegations, which, if true, would establish direct appeal
counsel’s further transgression when failing to respond to requests to inform
him when his petition for allowance of appeal to the Pennsylvania Supreme
Court was denied. See Pa.R.P.C. 1.4(a)(3)-(4) (“A lawyer shall . . . keep
the client reasonably informed about the status of the matter[ and] promptly
comply with reasonable requests for information.”). Although the majority
characterizes further proceedings as a “fishing expedition,” the factual
dispute relevant to a due diligence inquiry were raised in the pleadings. I
further echo the view that a defendant should be entitled to one meaningful
appeal of their conviction. See Commonwealth v. Brown, 943 A.2d 264,
272 (Pa. 2008) (Baer, J. dissenting).




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