J-S24009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LAHME PERKINS

                         Appellant                   No. 1038 MDA 2015


                 Appeal from the PCRA Order May 6, 2015
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0001266-2008
                          CP-22-CR-0001394-2008

BEFORE: GANTMAN, P.J., BOWES AND MUSMANNO, JJ

DISSENTING MEMORANDUM BY BOWES, J.:               FILED OCTOBER 18, 2016

      My learned colleagues hold that Lahme Perkins, who was denied PCRA

relief after a full evidentiary hearing, is now entitled to the appointment of

counsel to raise claims of collateral counsel’s effectiveness.   The majority

justifies this result on the fact that Appellant experienced difficulties

procuring service of a notice of intent to dismiss issued after the hearing, to

which Appellant attempted to respond.         However, since Appellant was

represented by counsel, he was not entitled to hybrid representation and the

judge was not required to act on any pro se responses to the unrequired

notice. I therefore dissent.

      This case presents a variation of the often-vexing problem of how a

litigant can secure appellate review of the rule-based right to effective

assistance of collateral counsel. In Commonwealth v. Henkel, 90 A.3d 16
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(Pa.Super. 2014) (en banc), following clear Supreme Court precedent on this

question, we noted that claims of PCRA counsel’s ineffective assistance could

not be raised for the first time on appeal. Therein, collateral counsel filed a

petition containing eleven claims.        The trial judge initially issued a

Pa.R.Crim.P. 907 notice of intent to dismiss nine of the claims, and held a

hearing on the remaining two claims.          The PCRA court then denied the

petition. The petitioner retained new counsel, who filed a notice of appeal,

raising claims of PCRA counsel ineffectiveness. We held those claims could

not be raised for the first time on appeal.

      The only distinction between the litigant in Henkel and Appellant

herein is that the trial court issued an unnecessary notice of intent to

dismiss, which was not received by Appellant. The rule governing notices of

intent to dismiss is titled “Disposition Without Hearing” (emphasis added).

Since the trial judge held a hearing on the PCRA claims, this notice was not

required. All the judge was required to do was “issue an order denying relief

. . . as provided in Rule 114.” Pa.R.Crim.P. 908(D)(1). The May 6, 2015

order satisfied that obligation. The question presented in this appeal is what

effect, if any, the unnecessary notice and Appellant’s attempts to respond

have on whether claims of PCRA counsel ineffectiveness have been

preserved.

      As the post-hearing notice is significant to my analysis, I begin by

setting forth its history.   Appellant filed a pro se PCRA petition and was


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appointed counsel who, on July 17, 2014, filed an amended petition

requesting an evidentiary hearing.             On February 18, 2015, the evidentiary

hearing was held. The docket reflects that on March 23, 2015, a notice of

intent to dismiss was issued.1 On April 23, 2015, Appellant filed a motion

seeking service of that notice. The motion reads in pertinent part:

       3. To date, [Appellant] has not been served with a copy of this
       [c]ourt’s March 23, 2015 Rule 907 Notice, and for this reason,
       has and continues to be prevented from ascertaining the basis of
       this [c]ourt’s contemplated dismissal.

       4. Furthermore, while it is true that [Appellant] is currently
       represented by counsel, because [Appellant] believes that
       present counsel has and continues to render deficient
       performance in the development, presentation and litigation of
       his claims for PCRA relief, it is imperative – at least as a matter
       of record preservation for any potential appeal – that [Appellant]
       raise any claims of PCRA counsel’s ineffectiveness in response to
       this Court’s Rule 907 Notice.

Motion, 4/23/15, at 2 (citing Commonwealth v. Pitts, 961 A.2d 875, 879,

n.3 (Pa. 2010)).      Notably, Appellant did not seek to represent himself or

seek leave to amend his petition.

       On May 6, 2015, the PCRA court dismissed the petition.             The judge

addressed the motion to compel service by separate order, which reads:

       AND NOW, this 6th day of May, 2015, upon consideration of
       Petitioner Lahme Perkins’ Motion to Compel Service of March 23,
       2015 Notice of Intent to Dismiss PCRA and Petitioner’s Motion for
       Extension of Time to Respond to March 23, 2015 Notice of Intent
       to Dismiss PCRA, IT IS HEREBY ORDERED that Petitioner’s

____________________________________________


1
    This document does not appear in the certified record.



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     Motion is DENIED. This Court notes that Petitioner is currently
     represented by Jennifer Tobias, Esquire.

     Petitioners filing for relief under the PCRA are not entitled to
     hybrid representation and trial courts are not required to
     consider pro se filings from petitioners that are represented by
     counsel. See Commonwealth v. Jette, 23 A.3d 1032 (Pa.
     2011); Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009);
     Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993).

Order, 5/6/15.    On May 14, 2015, Attorney Tobias filed a petition to

withdraw, citing correspondence from petitioner and his desire to file

ineffectiveness claims against her. Petition to withdraw, 5/14/15, at 3. The

trial court granted this request on June 4, 2015, and, on June 15, 2015,

ordered Appellant to file a concise statement.    Appellant complied and is

therefore representing himself pro se in these matters. The majority holds

that Appellant preserved claims of PCRA counsel ineffectiveness through his

responses to the notice of intent to dismiss. I disagree, since Appellant was

still represented by counsel, did not seek to represent himself, and

appointed counsel did not indicate that she wished to withdraw.

     The majority does not analyze the refusal to entertain the pro se

motions filed before entry of the order denying relief.   I believe the trial

judge correctly denied the motion, and, as a result, Appellant’s claims have

not been preserved. A review of Jette, supra, demonstrates that Appellant

did not preserve for appeal any claim of PCRA counsel ineffectiveness. In

Jette, appointed collateral counsel filed an amended petition, which was

dismissed following an evidentiary hearing. Counsel then filed an appeal and


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a brief addressing one issue.    Jette then submitted his own pro se brief

raising additional issues. This Court forwarded the pro se brief to counsel

and requested a response pursuant to a procedure we outlined in

Commonwealth v. Battle, 879 A.2d 266 (Pa.Super. 2005).                 Battle

required appointed counsel to review the pro se filings; if the brief alleged

ineffectiveness of appellate counsel the attorney was required to petition for

remand and discuss the merits of any pro se ineffectiveness claims.       We

then determined, on the basis of counsel’s analysis, whether remand was

warranted. Jette, supra at 1036, n.5 (describing Battle). Jette’s appellate

counsel complied, and prepared a motion to remand for the appointment of

new counsel.   We ultimately found that Jette was entitled to new counsel

and remanded for that purpose. Id. at 1036.

      The Commonwealth appealed.         Our Supreme Court reversed and

abrogated Battle, stating that the procedure “as applied to address pro se

claims of appellate counsel’s ineffectiveness, while that counsel is still

representing the appellant, is in contravention of this Court’s long-standing

policy that precludes hybrid representation.” Id.

      In my view, Jette controls the outcome.       This case poses a clear

hybrid representation problem, regardless of whether Appellant is seeking to

either add a supplemental claim to the PCRA petition (i.e., a claim for PCRA

relief not based on PCRA counsel’s ineffectiveness) or present an entirely

new claim predicated on PCRA counsel’s alleged ineffectiveness.      In either


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situation, requiring the trial court to accept the pro se filings effectively gives

Appellant a veto power over the contents of the PCRA petition and a new

chance to represent himself. Appellant’s counsel attempted to secure PCRA

relief, and if Appellant was dissatisfied with her efforts he could have sought

to represent himself or retain new counsel. Absent such a request, the trial

court could not act on any pro se documents.

       My colleagues do not discuss Jette. Instead, the majority determines

that “Perkins reserved his claim of PCRA counsel’s ineffectiveness by raising

them in his pro se response to the PCRA court’s Notice of intent to dismiss.”

Majority opinion at 3 (citing Pitts, supra, at 880, n.4). The majority has

therefore attached dispositive significance to the pro se response, and,

concomitantly, this represents a finding that the trial court committed legal

error in refusing to act on the response.

       Thus, this case can be reduced to a question of whether Pitts

requires a trial court to accept hybrid filings when those filings challenge

PCRA counsel’s effectiveness. I do not think that Pitts dictates that result.

Pitts concerns the preservation of claims when appointed counsel files a

Turner/Finley2 no-merit letter.          In Commonwealth v. Rykard, 55 A.3d

1177 (Pa.Super. 2012), we analyzed Pitts in deciding whether the appellant

therein properly preserved claims of ineffective assistance of PCRA counsel
____________________________________________


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



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who had filed a Turner/Finley no-merit letter.           Id. at 1186.       We

determined that a response to the notice of intent to dismiss did not

constitute a second or subsequent petition, as any pro se response is more

properly viewed as an objection to the proposed withdrawal.

      Obviously, there is a significant distinction between cases where

appointed counsel seeks to withdraw under Turner/Finley and cases where

appointed counsel litigates some set of claims.      In the former situation,

counsel is representing that there exists no meritorious issue at all, and the

no-merit letter represents a clear break in the attorney-client relationship.

As we stated in Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012):

      When counsel files a Turner/Finley no-merit letter and counsel
      has not yet been permitted to withdraw, the rule against hybrid
      representation is inapplicable, as the petitioner can file a pro se
      response. Ordinarily, as occurred in Pitts, attorneys are
      permitted to withdraw by the final order dismissing the petition,
      not when the notice of intent to dismiss is filed. Hence, at the
      time the petitioner responds, he would ostensibly be represented
      by counsel.

Id. at 1198, n.4.   However, in the latter situation, counsel has exercised

professional judgment in choosing which claims to present and how to

present them.    We observed in Rykard that the purpose of a Rule 907

notice is

      to allow a petitioner an opportunity to seek leave to amend his
      petition and correct any material defects, see Commonwealth
      v. Williams, 566 Pa. 553, 782 A.2d 517, 526 (2001), 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,

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       permitting the court to “discern the potential for amendment.”
       Id. at 527. The response is not itself a petition and the law still
       requires leave of court to submit an amended petition. See
       Pa.R.Crim.P. 905(A).

Rykard, supra at 1189 (emphasis added). Since Attorney Tobias did not

seek to withdraw and the PCRA court proceeded to merits review, Jette, not

Pitts, applies.

       Thus, the majority’s result not only sweeps aside the Supreme Court’s

hybrid representation principles, it also revives Battle, albeit restricting its

application to the PCRA court level. If that is not the case, how did the PCRA

court err in refusing to act on the pro se motion?3                  From the majority’s

perspective,      the     court    was      not   only   obligated    to     permit    hybrid

representation,     it    was     further    required    to   do   precisely    what   Jette

disapproved: act as a referee in a dispute between the pro se litigant and

PCRA counsel.           I read Jette to establish a categorical bar on judicial

interference between appointed counsel and the petitioners they represent.

Whether that interference occurs at the appellate level, as in Jette, or at the

PCRA court level, as is the case herein, is irrelevant.                    Absent Petitioner

seeking to represent himself, the PCRA court could not remove Attorney

Tobias.    “[T]his case amply reveals the tension the procedure interposes

between client and counsel and the inappropriate role the appellate court

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3
   The majority does not elaborate on what the PCRA court should have done
in response to Appellant’s pro se filings.



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then plays in refereeing the court-created ‘battle.’” Jette, supra at 1040.

The problems inherent in the Battle procedure are not ameliorated by

substituting our courts of common pleas for this Court in the role of referee.

Nothing prevented Petitioner from seeking to represent himself before the

unnecessary Rule 907 notice was issued. Tellingly, it was only upon learning

that the court intended to dismiss the petition after an evidentiary hearing

that Petitioner asserted PCRA counsel’s ineffectiveness.

       To that end, I believe the majority’s ruling creates even more

confusion by vacating the order denying relief. Appellant will be, in effect,

filing his first PCRA petition.4      However, the entire point of the majority’s

disposition is to permit Appellant to raise claims of collateral counsel

ineffectiveness. Yet, raising such a claim will be a procedural impossibility

given that there is no longer an order denying relief.        Any claim of PCRA

counsel ineffectiveness must be raised as a layered claim challenging

collateral counsel’s representation.5

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4
    Clearly, the forthcoming petition cannot be deemed a second or
subsequent petition: If so, the petition would be time-barred.           Thus,
Appellant is entitled to counsel. Pa.R.Crim.P. 904(C).
5
  The impossibility of raising a layered ineffectiveness claim is demonstrated
by the fact that there is no decision on the merits of the claims collateral
counsel litigated. How can Appellant possibly satisfy the prejudice prong?
Had we granted relief on the merits of the claims presented at the hearing,
PCRA counsel would clearly be effective. Thus, the majority has attached a
presumption of ineffectiveness to Attorney Tobias’s representation, based on
nothing more than the fact the PCRA court denied relief.

(Footnote Continued Next Page)


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      I recognize the visceral appeal in permitting Appellant to raise these

claims, since he attempted to respond to the unnecessary notice of intent to

dismiss. This action, on its surface, complies with what our precedents have

said. See Henkel, supra at 25-26 (“In two separate footnotes, the Pitts

majority mandated that a petitioner raise any allegations of PCRA counsel

ineffectiveness in response to the PCRA court's notice of dismissal.”). Since

we have established that a challenge to PCRA counsel ineffectiveness cannot

be raised on appeal, Petitioner’s filing would appear to be the only realistic

avenue to raise such claims.

      However, we cannot ignore our Supreme Court’s disapproval of hybrid

representation. Nor can we ignore the reality that the trial court could have

simply dismissed the petition, and, had that occurred, Appellant would be

barred from raising these claims pursuant to Henkel. Thus, the procedural

quirk of the unnecessary notice has given this litigant an extra round of

collateral attack.

       Additionally, I briefly note that in Henkel, supra, we stated that a

post-hearing notice of intent to dismiss, as occurred herein, is a possible


                       _______________________
(Footnote Continued)

Justice Baer, who filed a dissenting opinion in Pitts, opined that requiring
PCRA petitioners to raise ineffectiveness claims in response to a notice of
intent to dismiss is unworkable for precisely this reason. Accordingly,
Justice Baer would hold that the PCRA appeal stage is the “first and only
viable opportunity” to challenge collateral counsel’s representation. Pitts,
supra at 887 (Baer, J., dissenting).



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means to enable appellate review of collateral counsel ineffectiveness

claims:

      Possible non-legislative solutions to alleviate the problem could
      include requiring a notice of intent to dismiss in all first-time
      petition cases, even after an evidentiary hearing, or replacement
      of the notice of dismissal requirement with a post-PCRA motion
      practice. In this latter respect, the Supreme Court procedural
      rules committee could consider requiring PCRA judges to give
      reasons for dismissal when issuing a final order in all first-time
      petition cases and provide a window to present PCRA counsel
      ineffectiveness claims. Similar to a post-sentencing motion
      following a revocation proceeding, the post-PCRA motion would
      not have to toll the period for filing an appeal. However, it would
      provide petitioners an opportunity to request leave to file an
      amended petition alleging PCRA counsel ineffectiveness claims or
      otherwise raise the issue. Of course, hybrid representation
      concerns might have to be set aside in cases where
      counsel is not attempting to withdraw. This Court, of
      course, is without authority to promulgate procedural rules.

Henkel, supra at 29, n. 4 (emphasis added). Whatever the appeal of that

approach, our Supreme Court alone has the authority to create an exception

to Jette. Additionally, this case demonstrates that any amendment of our

rules as contemplated by Henkel should take into account that a post-

hearing notice of intent to dismiss, if accompanied by an explanation of

reasons for dismissal, is effectively giving litigants an advisory opinion.

Appellant’s motion seeking service of the notice explicitly stated that he was

prevented “from ascertaining the basis of this [c]ourt’s contemplated

dismissal.” Motion, 4/23/15, at 2. The majority characterizes this response

as alleging ineffective assistance of PCRA counsel. Yet it is difficult to read

Appellant’s motion as anything other than an attempt to tailor an


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ineffectiveness claim in light of the PCRA court’s opinions on why relief was

denied, i.e., PCRA counsel was ineffective for failing to win.   The right to

effective assistance of collateral counsel, whatever its contours, cannot

possibly go so far.

       I agree, however, that the trial court improperly permitted Attorney

Tobias to withdraw. Appellant was entitled to counsel for purposes of PCRA

appeal and he should have been given the option of representing himself on

appeal—limited to the issues presented at the evidentiary hearing and ruled

upon by the trial court—or to continue with Attorney Tobias (or private

counsel of his choice).6 I would therefore remand for a Grazier7 hearing.




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6
   Attorney Tobias sought to withdraw based on the fact that Appellant
wished to raise her ineffectiveness. I would leave it to the trial court to
determine whether there is an irreconcilable conflict. If so, the trial judge
could appoint new counsel.
7
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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