J-S78011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
JOSEPH MASON                               :
                                           :
                     Appellant             :    No. 475 WDA 2017

                Appeal from the PCRA Order March 15, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0009052-2013


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

MEMORANDUM BY OLSON, J.:                           FILED FEBRUARY 14, 2018

      Appellant, Joseph Mason, appeals pro se from an order entered on

March   15,   2017    that   dismissed   his   petition   filed   pursuant   to   the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate

and remand this matter with instructions.

      The PCRA court summarized the historical and procedural facts in this

case as follows.

      [T]he evidence presented at trial established that in the evening
      hours of May 26, 2013, Pittsburgh Police Officer Brendan
      Flicker[,] and his partner Officer Opsenica, were on a routine
      foot patrol near the intersection of Frankstown Avenue and
      Putnam Street in the Larimer section of the City of Pittsburgh, an
      area known for open-air drug sales. The two officers passed a
      red Chrysler with an Ohio license plate and observed the butt of
      a black and silver semi-automatic firearm through the car
      window. The officers returned to their vehicle and waited for the
      car to leave. Shortly thereafter, Officer Dustin Rummel radioed
      that he was traveling behind the vehicle, which had left its
      parking space without being seen by Officers Flicker and

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        Opsenica. Officer Rummel followed the red Chrysler for a time,
        then the pursuit was assumed by Officer Gregory Livesey, who
        observed the vehicle attempt to park against the flow traffic
        without a turn signal[. Officer Livesey] initiated a traffic stop.
        When Officer Livesey activated his patrol vehicle lights,
        [Appellant] jumped out of the vehicle and ran. It was noted that
        [Appellant’s] hands were by the center of his waistband while he
        was running. Officer Livesey and other officers followed, and
        [Appellant] ducked between two houses. Immediately a shot
        was heard and [Appellant] emerged saying “You shot me[.”]
        Shortly thereafter, a thermal imaging camera was used to locate
        the weapon, which was still hot from having been recently fired.
        A gunshot residue test performed on [Appellant’s] clothing
        revealed particles characteristic of gunshot residue on his left
        cuff.

        [Appellant] was charged with [persons not to possess firearms,1
        carrying a firearm without a license,2 recklessly endangering
        another person,3 escape,4 and possession or distribution of
        marijuana or hashish.5       Appellant’s] pre-trial [m]otion to
        [s]uppress was denied and [he] proceeded to a non-jury trial.
        At the conclusion of the trial, [Appellant] was [found] guilty of
        both [firearms] offenses and the possession charge, [but
        acquitted of r]ecklessly [e]ndangering [a]nother [p]erson and
        [e]scape. On April 7, 2014, [Appellant] appeared before [the
        trial c]ourt and was sentenced to a term of imprisonment of two
        (2) to 10 years. Timely [p]ost-[s]entence [m]otions were filed
        and were denied on August 20, 2014. The judgment of sentence
        was affirmed by the Superior Court on December 22, 2015 and
        [Appellant’s] subsequent [p]etition for [a]llowance of [a]ppeal
        was denied on April 20, 2016.

____________________________________________


1   18 Pa.C.S.A. §6105(a)(1)

2   18 Pa.C.S.A. §6106(a)(1)

3   18 Pa.C.S.A. §2705

4   18 Pa.C.S.A. §5121(a)

5   35 P.S. §780-1139(a)(31)



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          On June 4, 2016, [Appellant] filed a pro se [PCRA p]etition.
          [Counsel] was appointed[, but later obtained permission to
          withdraw    after   filing  a   no-merit letter   pursuant to
          Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
          Commonwealth v. Finley, 550 A.2d 213 (Pa. super. 1988).]
          After giving [Appellant 30 days in which to respond to the PCRA
          court’s notice of intent to dismiss, the court] dismissed
          [Appellant’s] pro se [p]etition without a hearing on March 15,
          2017. This appeal followed.

PCRA Court Opinion, 6/20/17, at 1-3.

          Appellant raises the following questions for our review:

          Did the PCRA [c]ourt err in denying Appellant’s [m]otion for
          [e]xtension of [t]ime to [r]espond to the PCRA Court’s
          [Pa.R.Crim.P.] 907 [notice of intent] to [d]ismiss the PCRA
          [p]etition?

          Did the PCRA [c]ourt err in [rejecting Appellant’s claims that trial
          and appellate counsel were ineffective]?

Appellant’s Brief at 4 (block capitalization omitted).

          Appellant challenges an order dismissing his petition for collateral

relief.     “This Court's standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by evidence of record and is free of legal error. In evaluating a

PCRA court's decision, our scope of review is limited to the findings of the

PCRA court and the evidence of record, viewed in the light most favorable to

the prevailing party at the trial level.” Commonwealth v. Weatherill, 24

A.3d 435, 438 (Pa. Super. 2011), appeal denied, 63 A.3d 777 (Pa. 2013).

          Appellant claims in his first issue that the PCRA court abused its

discretion in refusing to extend the 30-day deadline in which to respond to

the court’s dismissal notice. Our review of the certified record relevant to

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this claim reveals substantial confusion on the part of the PCRA court and

Appellant. We detail the substance of that confusion below.

       On February 2, 2017, the PCRA court granted counsel’s motion to

withdraw pursuant to Turner/Finley. In that same order, the court gave

Appellant 30 days in which to state how he wished to proceed.6                 Thus,

pursuant to the court’s February 2nd order, Appellant had until March 6, 2017

to file a response.7        Within that time-period, Appellant, acting pro se,


____________________________________________


6 The PCRA court’s February 2, 2017 order provides, in relevant part, as
follows:

       2.     [Appellant] is advised that he is no longer entitled to
              appointed counsel.

       3.     [Appellant] must elect to proceed in one of the following
              ways: 1) [Appellant] can obtain privately-retained counsel,
              2) [Appellant] can proceed without counsel, or 3)
              [Appellant] can withdraw the PCRA petition with prejudice.

       4.     [Appellant] must advise this [c]ourt on how he/she wishes
              to proceed by filing a pleading with the Clerk of Courts
              within thirty (30) days of the date of this Order. The
              failure to comply with the time limitations will result in the
              dismissal of the petition with prejudice as the [c]ourt will
              assume [Appellant] wishes to withdraw the petition.

PCRA Court Order, 2/2/17, at 1.

Although the PCRA court’s February 2, 2017 notice gave Appellant 30 days
in which to respond, the order did not explain the court’s reasons for
dismissal.

7March 4, 2017, the 30th day, was a Saturday so Appellant had until
Monday, March 6, 2017, to respond.



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forwarded a “motion for extension” to the PCRA court. This submission was

not filed with the Department of Court Records and does not appear in the

certified record. In his motion, Appellant requested a 60-day extension to

file a responsive pleading, arguing that he had limited access to the prison

library, that frequent prison lock downs prevented library access, and that

he was uneducated in the law.          Appellant’s motion did not raise a

substantive challenge and Appellant did not identify any additional legal

research or supporting investigation that was required in order to prepare a

response.

      On February 14, 2017, the PCRA court entered the following order:

      Petitioner having filed a Motion for Extension, it is hereby
      ordered, adjudged and decreed that either an amended PCRA
      petition of [sic] a “no-merit” letter shall be filed on or before
      April 14, 2017.

PCRA Court Order, 2/14/17.     With the entry of this order, the PCRA court

appeared to grant Appellant’s requested extension. Nevertheless, the PCRA

court issued an order on March 15, 2017 that dismissed Appellant’s PCRA

petition.

      We shall treat the PCRA court’s February 14, 2017 order as a notice of

intent to dismiss under Pa.R.Crim.P. 907 since it preceded the summary

dismissal of Appellant’s petition. In relevant part, Rule 907 provides:

      If the judge is satisfied from its review that there are no genuine
      issues concerning any material fact and that the defendant is not
      entitled to post-conviction collateral relief, and no purpose would
      be served by any further proceedings, the judge shall give notice


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      to the parties of the intention to dismiss the petition and shall
      state in the notice the reasons for the dismissal.

Pa.R.Crim.P. 907(1) (emphasis added).

      The purpose behind a Rule 907 pre-dismissal notice is to allow a
      petitioner an opportunity to seek leave to amend his petition and
      correct any material defects, the ultimate goal being to permit
      merits review by the PCRA court of potentially arguable claims.
      The response is an opportunity for a petitioner and/or his
      counsel to object to the dismissal and alert the PCRA court of a
      perceived error, permitting the court to discern the potential for
      amendment.

Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012)

(internal citations and quotation marks omitted).

      Moreover, where counsel has filed a Turner/Finley no-merit letter, “a

petitioner   can   preserve   [an]   issue   [concerning    PCRA    counsel’s

representation] by including that claim in his Rule 907 [response].”

Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014). However,

a petitioner may not raise a new claim. See id. (“Where the petitioner does

not seek leave to amend his petition after counsel has filed a Turner/Finley

no-merit letter, the PCRA court is under no obligation to address new

issues.”).

      In this case, the PCRA court’s Rule 907 notice failed to provide

Appellant notice and an opportunity to understand why the court intended to

dismiss his petition. On remand, the PCRA court shall file a proper Rule 907

notice and Appellant shall have the opportunity to do one or more of the

following: 1) set forth any additional arguments with respect to claims raised



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in the petition; 2) seek leave to amend his PCRA petition; and/or, 3) assert

PCRA counsel’s ineffectiveness. Accordingly, we vacate the dismissal order

of the PCRA court and direct the court to file a proper Rule 907 notice.

Appellant shall have 20 days in which to respond to the Rule 907 notice.

      Order vacated.      Case remanded with instructions.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2018




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