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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID BOWENS,

                            Appellant                No. 718 EDA 2018


             Appeal from the PCRA Order Entered June 6, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0005367-2010


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 15, 2019

      Appellant, David Bowens, appeals pro se from the post-conviction

court’s June 6, 2017 order, which appears to dismiss, as untimely, his April

27, 2015 petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We vacate the PCRA court’s order and remand for

further proceedings.

      On January 17, 2012, Appellant was sentenced to an aggregate term of

27½-55 years’ imprisonment, imposed after he entered into a negotiated

guilty plea to third degree murder, 18 Pa.C.S. § 2502(c), and other related

offenses. He did not file a timely post-sentence motion or a direct appeal.

      The docket, in fact, shows that Appellant took no further action until

January 15, 2014, when he filed, pro se, a “Motion for Modification of Sentence

Nunc Pro Tunc.” Therein, he set forth various reasons supporting his request
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for modification, including, inter alia, that his sentence constitutes double

jeopardy, he did not receive a “fair assessment” by the court, and his trial

counsel was ineffective because counsel did not file a direct appeal, should

“have requested a merger[],” and did not argue diminished capacity. See

Motion for Modification of Sentence Nunc Pro Tunc, 1/15/2014, at 1-3

(unnecessary capitalization omitted). Based on the docket, it appears that

this motion went unacknowledged and unaddressed by the court below.

       On April 27, 2015, Appellant filed, pro se, a PCRA petition, in which he

raised a myriad of claims, including, among other things, that his sentence

was unconstitutional, he was “spoofed” by his trial counsel to plead guilty, his

counsel — “under false pretense” — failed to file an appeal, and his convictions

should have merged for sentencing purposes. See PCRA Petition, 4/27/2015,

at 3. Moreover, in that petition, he pointed out that his January 15, 2014

motion for modification of sentence remained pending, and he requested that

the court appoint a lawyer to represent him. Id. at 4, 7.

       Nearly nine months later, on January 29, 2016, David S. Rudenstein,

Esq., entered his appearance on the docket. Over a year after that — on

February 23, 2017 — Attorney Rudenstein filed a Turner/Finley1 no-merit

letter and a motion to withdraw. Therein, Attorney Rudenstein examined the

issues presented in Appellant’s April 27, 2015 PCRA petition, concluded that

none have arguable merit, and represented that he could not find any issue
____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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of arguable merit that could form the basis for PCRA relief after independently

reviewing the record. See No-Merit Letter, 2/23/2017, at 5-8. In addition,

Attorney Rudenstein stated in his no-merit letter:
       Counsel has inspected [Appellant’s] other filing which was his
       [m]otion for [r]econsideration of [s]entence, filed nunc pro tunc
       on January 15, 2014. This counsel does not believe that the
       [m]otion should be deemed to be a PCRA filing. However, and
       even if it was so considered to be such a filing, [Appellant] did not
       file that until January 15, 2014, and hence, … even if a PCRA filing,
       it would still be out of time and there would be no exceptions.

Id. at 3-4. Attorney Rudenstein did not explain why Appellant’s January 15,

2014 motion for modification of sentence should not be construed as a PCRA

petition, nor did he specifically list and examine the issues Appellant raised in

it.

       On March 22, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s PCRA petition without a hearing. It briefly

stated the reason for dismissal as: “Your attorney has determined that the

issues raised in your pro se [PCRA] petition are without merit. Counsel’s letter

pursuant to … [Turner/]Finley … is attached.”          Pa.R.Crim.P. 907 Notice,

3/22/2017, at 1 (unnumbered pages).2

       On March 28, 2017, Appellant filed a motion requesting that he receive

an extension of time to respond to the Rule 907 notice and Attorney


____________________________________________


2 We remind the PCRA court that, when considering if counsel has satisfied
the requirements to be permitted to withdraw, it “must conduct its own
independent evaluation of the record and agree with counsel that the petition
is without merit.” Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.
Super. 2014) (citations omitted).

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Rudenstein’s no-merit letter. He alleged that he had not yet received the no-

merit letter nor his file, despite purportedly requesting them from Attorney

Rudenstein for months. See Appellant’s Letter, 3/28/2017. He specifically

asked the PCRA court for an extension of 30 days from his receipt of the no-

merit letter to respond to the Rule 907 notice. See id. On April 26, 2017,

the PCRA court granted Appellant’s request for an extension of time.         It

ordered Appellant to file a response within 25 days, i.e., by May 22, 2017.

The record does not indicate that Appellant did so.

      Thereafter, on June 6, 2017, the PCRA court dismissed Appellant’s PCRA

petition. It did not provide its reasons for doing so in its order. Instead, it

merely set forth, “AND NOW, this 6th day of June, 2017, after consideration

of the Motion to Dismiss PCRA by the Commonwealth[,] it is ORDERED that

the Motion to Dismiss PCRA is GRANTED.” PCRA Order, 6/6/2017, at 1 (single

page).    However, our review of the record does not show that the

Commonwealth filed a motion to dismiss. The order, moreover, stated that

the PCRA court served it on Attorney Rudenstein, among others, and that “907

Notice was sent.” Id. Yet, the order — and the corresponding docket entry

— did not demonstrate that the PCRA court served the order on Appellant.

      Over eight months later, on February 15, 2018, Appellant filed a pro se

notice of appeal and a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).     In his Rule 1925(b) statement, Appellant

averred, inter alia, that:




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      4. [T]his appeal should not be denied. The fact is that [Appellant]
      never received a final order from the court. [Appellant] sent to
      the [c]ourt a communication requesting information regarding this
      matter. One docket sheet was provided by this [c]ourt [on]
      11/6/17, in which [Appellant] then found out that his PCRA
      [petition] was denied.

      5. A request was forwarded to [s]ecurity of this facility who
      handles all legal mail and found out that he never received legal
      mail in the month of June … 2018.

Pa.R.A.P. 1925(b), 2/15/2018, at 1 (unnumbered, single page; unnecessary

capitalization omitted).

      On April 2, 2018, the PCRA court issued a Rule 1925(a) opinion. In that

opinion, it summarized the procedural history of this case as follows:
      On January 15, 2014, Appellant filed a pro se Motion for
      Modification of Sentence Nunc Pro Tunc.1 Subsequent thereto, on
      April 27, 2015, Appellant filed a pro se PCRA petition. Counsel
      was appointed to represent him and on February 23, 2017,
      counsel filed a no-merit letter pursuant to [Turner/Finley] and
      a motion to withdraw as counsel.
         1  Under the law[,] this filing constituted a PCRA petition
         because the law provides that any document filed after the
         judgment of sentence becomes final must be treated as a
         petition for post-conviction relief, regardless of how a
         petitioner or counsel titles his filing. See Commonwealth
         v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002) (explaining
         that the PCRA is the sole means for obtaining collateral
         review and any petition filed after judgment of sentence is
         final is treated as a PCRA petition). Here[,] because
         Appellant did not file a post-sentence motion or a direct
         appeal within the time constraints set by law, his conviction
         became final thirty days after January 17, 2012, the date
         [his] sentence was imposed, which for purposes of appeal is
         considered a final order. See 42 Pa.C.S. § 9545(b) and
         Pa.R.A.P. 903(a) (indicating that an appeal must be filed
         within thirty days of the date of the order being appealed
         from is filed).

      After carefully reviewing the record and Appellant’s various filings,
      this [c]ourt determined that Appellant’s filings were untimely and

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     that this [c]ourt lacked jurisdiction to address Appellant’s various
     claims. Thus, on March 22, 2017, this [c]ourt sent Appellant
     [Rule] 907 notice advising him that his petition was going to be
     dismissed. He filed responses thereto and after this [c]ourt
     reviewed them along with the remainder of the case, on June 6,
     2017, this [c]ourt carefully reviewed the matter after which it
     issued an order denying Appellant PCRA relief.

     On February 15, 2018, Appellant filed a pro se [n]otice of [a]ppeal
     and a pro se [Rule] 1925(b) statement wherein he states, inter
     alia, that he never received a copy of the order dismissing his
     PCRA petition and first learned that it had been dismissed on
     November 6, 2017. He offered no explanation as to why he waited
     three plus months to file his notice of appeal after learning that
     his PCRA petition had been dismissed and this [c]ourt takes no
     position concerning the timeliness of his notice of appeal in light
     of the fact that the question of the timeliness of Appellant’s filing
     of his [n]otice of [a]ppeal is for the Superior Court to decide.

PCRA Court Opinion (PCO), 4/2/2018, at 2-3. After summarizing this case’s

procedural history, the PCRA court explained that it lacked jurisdiction to

address the claims Appellant raised in both his January 15, 2014 motion for

modification and April 27, 2015 PCRA petition due to Appellant’s failure to

meet the PCRA’s timeliness requirements. See PCO at 4-5.

     Preliminarily, while we recognize that Appellant’s February 15, 2018

notice of appeal from the PCRA court’s June 6, 2017 order was untimely, we

conclude a breakdown in the operations of the court occurred and decline to

quash this appeal. See Commonwealth v. Patterson, 940 A.2d 493, 498

(Pa. Super. 2007) (“Generally, an appellate court cannot extend the time for

filing an appeal. Nonetheless, this general rule does not affect the power of

the courts to grant relief in the case of fraud or breakdown in the processes

of the court.”) (citations omitted); Commonwealth v. Liebensperger, 904



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A.2d 40, 44 (Pa. Super. 2006) (entertaining an untimely appeal and observing

that “[t]his Court has refrained from quashing an appeal as untimely where

the trial court failed to properly advise the appellant of his appellate rights”)

(citation omitted).3

       Looking now to the merits of Appellant’s appeal, we have several

concerns about the way in which the PCRA proceedings unfolded below.

Initially, the record is unclear as to whether the PCRA court denied Appellant’s

January 15, 2014 motion for modification and his April 27, 2015 PCRA petition.

Troublingly, the PCRA court made no mention of Appellant’s January 15, 2014

motion until its Rule 1925(a) opinion.4 The PCRA court’s June 6, 2017 order

did not convey that it was denying both Appellant’s January 15, 2014 motion

for modification and his April 27, 2015 PCRA petition. Additionally, in its Rule

907 notice, the PCRA court stated that it was dismissing Appellant’s PCRA
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3We note that this Court issued a rule to show cause why Appellant’s appeal
should not be quashed as untimely filed. See Pa.R.A.P. 903(a) (requiring that
a notice of appeal be filed within 30 days after the entry of the order from
which the appeal is taken). Appellant filed a pro se response, in which he
asserted that he never received the PCRA court’s June 6, 2017 order. See
Response to Rule to Show Cause, 6/6/2018, at ¶ 2.

4 Therein, the PCRA court explained that it viewed Appellant’s January 15,
2014 motion as a PCRA petition. See PCO at 2 n.1. It then analyzed its
timeliness under the PCRA, and asked us to affirm its dismissal. Id. at 5.
Nevertheless, the PCRA court had failed to appoint counsel to represent
Appellant for this petition and allowed it to linger outstanding for years. See
Pa.R.Crim.P. 904(c) (“[W]hen an unrepresented defendant satisfies the judge
that the defendant is unable to afford or otherwise procure counsel, the judge
shall appoint counsel to represent the defendant on the defendant’s first
petition for post-conviction collateral relief.”).



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petition because of Attorney Rudenstein’s no-merit letter, which only focused

on the claims raised in Appellant’s April 27, 2015 PCRA petition.          See

Pa.R.Crim.P. 907 Notice at 1 (unnumbered pages); No-Merit Letter at 4, 5-8.5

To add to the confusion, the Commonwealth seems to overlook Appellant’s

April 27, 2015 PCRA petition completely, omitting it entirely from its statement

of the case. Commonwealth’s Brief at 2.6 We are unsure if this omission is

an oversight, or if the Commonwealth thinks the April 27, 2015 PCRA petition

was an amendment to Appellant’s January 15, 2014 motion, rather than a

separate filing. Thus, given these diverging positions and the lack of clarity


____________________________________________


5 We reiterate that Attorney Rudenstein did not believe that the January 15,
2014 motion for modification “should be deemed to be a PCRA filing[,]”
although he provided no rationale for that assertion. See No-Merit Letter at
4. We note that “[i]t is well-settled that the PCRA is intended to be the sole
means of achieving post-conviction relief. … [A]n untimely post-sentence
motion filed after finality of judgment is to be treated as a PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462, 465, 467 (Pa. Super. 2013)
(citation omitted).

6   The Commonwealth states the history of the case as follows:
        On January 15, 2014, [Appellant] filed a pro se Motion for
        Modification of Sentence Nunc Pro Tunc, which the PCRA court
        treated as a PCRA petition. On February 23, 2017, appointed
        counsel filed a letter pursuant to [Turner/Finley], concluding
        that [Appellant’s] petition was untimely, that there was no
        applicable exception to the jurisdictional time-bar, and his
        substantive claims were otherwise meritless. On June 6, 2017,
        the PCRA court dismissed [Appellant’s] petition as untimely.
        [Appellant] appeals.
Commonwealth’s Brief at 2.




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in the record, it must be ascertained exactly which filing(s) the PCRA court is

currently disposing of and its basis for doing so.

       Furthermore, it appears that the PCRA court neglected to rule on

Attorney Rudenstein’s no-merit letter and motion to withdraw. Accordingly,

Attorney Rudenstein still represents Appellant, and Appellant should not be

proceeding pro se on appeal. We also observe that, to the extent the PCRA

court mistakenly believed that it had permitted Attorney Rudenstein to

withdraw, it did not properly notify Appellant that it dismissed his PCRA

petition on June 6, 2017.7 Given these multiple errors and ambiguities, we

vacate the PCRA court’s June 6, 2017 order and remand this matter for the

PCRA court to address these unresolved issues.

       Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/19



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7 See Pa.R.Crim.P. 907(4) (“When the petition is dismissed without a hearing,
the judge promptly shall issue an order to that effect and shall advise the
defendant by certified mail, return receipt requested, of the right to appeal
from the final order disposing of the petition and of the time limits within which
the appeal must be filed. The order shall be filed and served as provided in
Rule 114.”).

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