J-S65030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

    MUHAMMUD BINABDULRAHI HILL

                             Appellant               No. 916 MDA 2018


               Appeal from the PCRA Order Entered May 2, 2018
               In the Court of Common Pleas of Schuylkill County
                Criminal Division at No: CP-54-CR-0000057-2014


BEFORE: SHOGAN, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                       FILED JANUARY 25, 2019

        Appellant, Muhammud Binabdulrahi Hill, appeals pro se from the May 2,

2018 order denying his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        On October 22, 2014, a jury found Appellant guilty of aggravated

assault, simple assault, and harassment.1       On December 2, 2014, the

sentencing court imposed eight and one-half to seventeen years of

incarceration. This Court affirmed the judgment of sentence on March 11,

2015, and our Supreme Court denied allowance of appeal on September 27,

2016. Appellant filed a timely first pro se PCRA petition on September 29,

2017. On April 11, appointed counsel filed a no merit letter and petition to


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1    18 Pa.C.S.A. §§ 2701, 2702, and 2709.
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withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The PCRA court entered an order on May 2, 2018 dismissing the petition

without a hearing and without ever entering notice of its intent to do so in

accord with Pa.R.Crim.P. 907. The only issue Appellant raises in this timely

pro se appeal is whether the PCRA court erred by failing to file a Rule 907

notice.

      Because Appellant challenges the PCRA court’s legal conclusion, our

standard of review is de novo. Commonwealth v. Reyes-Rodriguez, 111

A.3d 775 (Pa. Super. 2015) (en banc), appeal denied, 123 A.3d 331 (Pa.

2015). Rule 907 provides in pertinent part as follows:

      Except as provided in Rule 909 for death penalty cases,

      (1) the judge shall promptly review the petition, any answer by
      the attorney for the Commonwealth, and other matters of record
      relating to the defendant’s claim(s). If the judge is satisfied from
      this 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 to the parties of
      the intention to dismiss the petition and shall state in the notice
      the reasons for the dismissal. The defendant may respond to the
      proposed dismissal within 20 days of the date of the notice. The
      judge thereafter shall order the petition dismissed, grant leave to
      file an amended petition, or direct that the proceedings continue.

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

      The   only case    Appellant cites in     support of his argument is

Commonwealth v. Hopfer, 965 A.2d 270 (Pa. Super. 2009). There, as here,

the petitioner’s counsel filed a no merit letter and the trial court dismissed the


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petition without filing a Rule 907 notice. There, as here, the petitioner argued

that the PCRA court committed an error of law in dismissing his petition

without complying with Rule 907. We agreed. In its analysis, the Hopfer

Court considered our decision in Commonwealth v. Bond, 630 A.2d 1281

(Pa. Super. 1993), in which this Court held that the PCRA court’s dismissal

without filing notice was acceptable where the dismissal occurred more than

20 days after the petitioner received counsel’s no merit letter.      The Bond

Court declined to remand for entry of notice (under then extant Rule 1507,

the predecessor to Rule 907) because counsel and the court “scrupulously”

followed Turner/Finley procedure. Id. at 1283. The Bond Court wrote:

             In order to withdraw successfully, however, counsel must
      inform the court in a ‘no-merit letter’ the extent of her review, the
      exact claims raised by the petitioner, and explain why they are
      meritless. The post-conviction court must conduct its own review
      of the record and agree that the petition is meritless. Once this
      procedure is completed, the petitioner has received all the
      protection incorporated into the right to counsel in collateral
      proceedings’ to which he is entitled, and ‘[n]o further inquiry,
      notification to the petitioner or a finding that the claims of the
      petitioner [are] ‘wholly frivolous’ is necessary.

Id. at 1283 (quoting Turner and Finley). In addition to the no merit letter

and petition to withdraw, the petitioner’s counsel sent multiple letters

explaining the lack of validity of the petitioner’s claims. Id. The petitioner

never responded to the Turner/Finley filing.        The Bond Court therefore

concluded that the Rule 1507 (now Rule 907) notice was unnecessary. Id.

      The Hopfer Court distinguished Bond, noting that the PCRA court in

Bond waited more than twenty days after counsel’s Turner/Finley filing to

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dismiss the petition.      In Hopfer, however, the PCRA court dismissed the

petition immediately upon receiving counsel’s Turner/Finley filing. Hopfer,

965 A.2d at 275.       The petitioner therefore received the no-merit letter no

more than two days before the PCRA court’s dismissal order. Id. The Hopfer

Court held that “any notice of dismissal, whether in the form of a Rule 907

notice by the court or a Turner/Finley no-merit letter, must occur at least

twenty days prior to an official dismissal order.” Id. Taken together, Bond

and Hopfer teach that counsel’s Turner/Finley filing can take the place of a

Rule 907 notice so long as (1) counsel and the court scrupulously comply with

Turner/Finley procedure, and (2) the PCRA court waits at least twenty days

after the date of the Turner/Finley filing to enter a dismissal order.2

       Instantly, the record reflects that counsel filed the Turner/Finley

petition to withdraw and no merit letter on April 11, 2018. The PCRA court


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2   As a three-judge panel of this Court, we are not free to disregard the
opinions in Bond and Hopfer. We observe however, that Rule 907 provides
that a PCRA court “shall give notice 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). Our Supreme Court has noted that “the word ‘shall’ as
used in a statute is generally regarded as mandatory[.]” Commonwealth v.
Baker, 690 A.2d 164, 167 (Pa. 1997). The Bond and Hopfer Courts, in
essence, apply a judicially-created exception to the mandatory language of
Rule 907 which permits the PCRA court to rely on a Turner/Finley filing in
lieu of Rule 907 notice. This in turn, forces a pro se appellant to litigate
whether compliance with Turner/Finley was sufficiently scrupulous, and/or
whether Bond is viable under statutory construction analysis. This seems to
us a significant burden to place on a pro petitioner who received no notice
from the PCRA court that his petition was about to be dismissed without a
hearing. Absent further direction from an en banc panel of this Court or our
Supreme Court, however, we are constrained to adhere to existing precedent.

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entered its dismissal order twenty-one days later, on May 2, 2018. The PCRA

court therefore complied with Hopfer. Appellant never responded to counsel’s

Turner/Finley filing, and he does not assert any deficiency in compliance with

Turner/Finley on the part of counsel or the court. We therefore affirm the

order dismissing Appellant’s petition.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/25/2019




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