J-S85006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JOHN FREDERICK BROWN, JR.                 :
                                           :
                    Appellant              :     No. 41 WDA 2017

               Appeal from the PCRA Order December 9, 2016
     In the Court of Common Pleas of McKean County Criminal Division at
                       No(s): CP-42-CR-0000394-2013


BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                                   FILED MAY 21, 2018

      John Frederick Brown, Jr., appeals pro se from the order that

dismissed his petition filed pursuant to the Post Conviction Relief Act. We

vacate the order and remand with instructions.

      The record reveals the following.        Appellant was charged with rape,

attempted rape, two counts of indecent assault, aggravated assault, and

simple assault resulting from his attack on his former paramour. Douglas J.

Garber, Esquire, of the Public Defender’s Officer, was appointed to represent

Appellant because he could not afford to hire a private attorney. Leading up

to   trial,   Attorney   Garber   sought       discovery   materials   from   the

Commonwealth, including results of any testing done upon the rape kit

collected from the victim at the hospital. However, he withdrew a motion to

compel after the Commonwealth’s represented that no testing had been
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done on the rape kit. Attorney Garber did not have testing done on the rape

kit for the defense, although Appellant had so requested.         N.T. PCRA

Hearing, 12/9/16, at 10-11.

      Following a jury trial, Appellant was convicted on all counts except

aggravated assault.      Before Appellant was sentenced, he filed a pro se

document purporting to notify Attorney Garber that his services were

terminated based upon ineffective assistance, complaining, inter alia, of a

lack of discovery materials and counsel’s badgering him into declining to

testify at trial.   The trial court conducted a hearing on Appellant’s motion

immediately prior to sentencing on January 17, 2014.

      At the hearing at which Attorney Garber was present, Appellant first

argued pro se that the Commonwealth failed to comply with discovery rules

and Brady v. Maryland, 373 U.S. 83 (1963).            The trial court advised

Appellant: “That’s a matter for Appeal that’s not a matter for me at this

time.”   N.T. Motion for Substitute Counsel and Sentencing, 1/17/14, at 5.

Appellant next sought to argue Attorney Garber’s ineffectiveness, but the

court informed him: “That’s for Post-Conviction Relief Act that’s not before

me now.”      Id.    The trial court denied Appellant’s motion, and Attorney

Garber thus remained Appellant’s counsel.

      The trial court then immediately proceeded to sentencing, imposing an

aggregate term of imprisonment of eight to twenty-two years.       Regarding

post-sentence rights, the trial court informed Appellant that he had the right


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to the assistance of an attorney in pursing a direct appeal, and that if he

could not afford one, the trial court “will appoint an attorney to represent

you free of charge.”       Id. at 7.       The trial court did not explain that the

attorney whose assistance was available was Attorney Garber, who had

already been appointed to represent Appellant based upon his indigence.

       In a pro se post-sentence motion docketed on January 27, 2014,

Appellant again raised issues regarding the rape kit and Attorney Garber’s

ineffectiveness, and sought the appointment of substitute counsel.             The

docket does not reflect that Appellant’s motion was forwarded to counsel as

is required by Pa.R.Crim.P. 576(A)(4).              On the same day on which

Appellant’s motion was docketed, the trial court entered two orders, both of

which were served on Appellant and the Public Defender’s office. One of the

orders indicated that Appellant’s post-sentence motion was denied without a

hearing, stated that Appellant had thirty days from the date of that order to

file an appeal,1 and again informed already-represented Appellant that he

had the right to have counsel appointed for an appeal if he was proceeding

in forma pauperis (“IFP”).         Order, 1/27/14 (document 44 in the certified

record). The other order, noting “it appearing that no PCRA petition and no

appeal is pending before this [c]ourt,” denied Appellant’s request for the

____________________________________________


1 A pro se post-sentence motion filed by a represented party is “a nullity,
having no legal effect.” Commonwealth v. Nischan, 928 A.2d 349, 355
(Pa.Super. 2007).



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appointment of substitute counsel on the basis that Appellant had failed to

show irreconcilable differences between himself and trial counsel.       Order,

1/27/14 (document 45 in the certified record).

       On February 4, 2014, the prothonotary docketed yet another pro se

motion for appointment of substitution of counsel filed by Appellant.       The

docket does not reflect that it was forwarded to counsel as required by

Pa.R.Crim.P. 576(A)(4). The trial court denied it the same day, which was

within the thirty-day appeal period, on the bases that “the docket reflect[s]

that there is no pending matter before the [c]ourt for which appointed

counsel is necessary, and [Appellant] [had] baldly alleged ‘irreconcilable

differences.’” Order, 2/4/14.

       The next docket entry is a pro se motion to amend notice of appeal2

filed by Appellant on May 2, 2014.3 In the motion, Appellant indicated that

his appeal was from his January 17, 2014 judgment of sentence rather than

the January 27, 2014 order that denied his post-trial motions. Once again,

the docket does not reflect compliance with Pa.R.Crim.P. 576(A)(4). Rather




____________________________________________


2 The certified record contains no indication that Appellant had filed a notice
of appeal at that point, and it does not appear Appellant filed a notice in this
Court during the relevant time.

3The motion is dated April 23, 2014, and its envelope is postmarked April
29, 2014.



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than treat the motion as a PCRA petition,4 the PCRA court denied it, “it

appearing that there is no pending matter regarding this criminal action.”

Order, 5/2/14. The Public Defender’s office was copied on the order denying

Appellant’s motion.

       On May 15, 2014, Attorney Garber filed a petition for leave to

withdraw his appearance, stating therein that the case was complete, as

there were no outstanding issues and no notice of appeal filed. Petition for

Leave to Withdraw, 5/15/14. The petition was denied by an order that was

filed May 21, 2014, but not served upon Appellant.         However, Attorney

Garber’s subsequent praecipe to withdraw appearance was served on

Appellant on May 22, 2014.

       In August 2014, Appellant filed a motion for transcripts and a motion

seeking leave to appeal IFP. By orders filed September 2, 2014, the PCRA

court denied the former on the basis that no appeal was filed within thirty

days of Appellant’s judgment of sentence, and the latter because there was

neither an appeal nor PCRA petition pending.

       On January 8, 2015, Appellant filed a timely pro se PCRA petition.

Therein he claimed that Attorney Garber coerced him into not testifying at

trial, advocated for the prosecution, and failed to: file post-trial or post-

____________________________________________


4 See, e.g., Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013)
(“[A]ll motions filed after a judgment of sentence is final are to be construed
as PCRA petitions.”).



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sentence motions or a direct appeal, preserve the discovery issues, or

investigate witnesses and formulate an adequate defense.                PCRA Petition,

1/8/15, at 3-4v. He also claimed that the Commonwealth failed to provide

discovery materials. Id. at 4i. On June 8, 2015, Appellant filed a request

for a status report on his PCRA petition, and for transcripts.

      On July 14, 2015, the PCRA court appointed James P. Miller, Esquire,

to represent Appellant and ordered him to file an amended petition within

thirty days. Attorney Miller requested and was granted an extension of time

until October 31, 2015, to file an amended petition.             Order, 9/3/15.     By

order of October 5, 2015, the PCRA court granted Attorney Miller’s request

for transcripts.      The transcripts and the Commonwealth’s answer to

Appellant’s pro se petition were filed in November 2015. Attorney Miller did

not file an amended petition.

      The docket reflects no further activity until July 16, 2016, when

Appellant pro se filed a motion for change of counsel, or to proceed pro se,

claiming that      Attorney Miller was ineffective in failing to either file an

amended     PCRA     petition   or   seek    leave    to    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 scheduled and rescheduled a hearing on Appellant’s motion but,

for reasons not discernible from the record, the PCRA court without a

hearing vacated Attorney Miller’s appointment and appointed Robert D.


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Kinnear, Esquire, in his stead.     The PCRA court further directed Attorney

Kinnear to file an amended PCRA petition within thirty days and scheduled a

hearing.

      Attorney Kinnear did not file an amended PCRA petition. Instead, he

appeared at the scheduled hearing and informed the PCRA court that he did

not feel the need to file an amended petition because Appellant’s pro se

petition “raised any issues I would have raised.”           N.T. PCRA Hearing,

12/9/16, at 6.    Attorney Kinnear nevertheless proceeded on the record to

explain his opinion that a number of Appellant’s issues lacked merit.           Id.

When the PCRA court asked him if he wanted to orally amend the PCRA

petition to withdraw the non-meritorious claims, Attorney Kinnear indicated

as follows.

      I don’t think I have the right to withdraw that if it’s his position.
      I am representing him, but I would certainly write a no-merit
      letter regarding those claims after I did . . . a full investigation of
      the record . . . to support that. I believe the claims to be
      meritless.

Id. at 7-8.   Attorney Kinnear informed the PCRA court that he wished to

limit the PCRA hearing to the issues of “whether the appeal rights were

preserved or requested,” whether Appellant “was advised prior to not

testifying that it was his right to testify or not to testify,” and “the third one,

which I think may or may not have bearing on the [c]ourt, which I think is

the most pressing issue, would be the [d]iscovery issue of DNA requesting.”




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Id. at 6-7.    Appellant’s consent to the limitation of issues was neither

requested nor volunteered.

      Attorney Kinnear presented the testimony of Attorney Garber and

Appellant. At the conclusion of the hearing, Attorney Kinnear argued to the

PCRA court that Appellant’s claim regarding counsel’s pressure not to testify

at trial was meritless. Id. at 35. Regarding the rape kit and the fact that it

was never tested, Attorney Kinnear indicated that he did not know what

duties were in place, if any, and offered to do research and file a brief if the

PCRA court so desired. Id. at 36. Finally, Attorney Kinnear acknowledged

that Attorney Garber testified that Appellant did not request that he file an

appeal, but suggested, without actually so stating, that the record supported

a finding that Appellant expressed a desire for a direct appeal.      Id.   The

PCRA court denied Appellant’s petition at the conclusion of the hearing.

      On December 19, 2016, Attorney Kinnear filed both a notice of appeal

to this Court and a petition to withdraw as counsel.     In the accompanying

no-merit letter, Attorney Kinnear, inter alia, advised Appellant that he would

be able to hire private counsel or proceed pro se if the motion to withdraw

was granted. No-Merit Letter, 12/19/16, at unnumbered 4. On December

29, 2016, Attorney Kinnear filed an amended notice of appeal.         By order

entered January 3, 2017, the PCRA court granted Attorney Kinnear’s

petition, despite the pendency of the appeal to this Court. The docket does

not reflect that the order was served on Appellant.         Appellant filed an


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objection to Attorney Kinnear’s petition and no-merit letter, citing the appeal

pending in this Court. Notice of Objection, 1/17/17. No action was taken

upon Appellant’s objection.

       On February 16, 2017, Attorney Kinnear filed a motion to withdraw in

this Court to which he attached the PCRA court’s January 3, 2017 order as

well as the no-merit letter.5 This Court entered an order providing that “the

motion is granted such that [A]ttorney Kinnear is excused from his

representation of Appellant” and that Appellant “is advised that he is now

proceeding pro se in this appeal, but that he is free to employ counsel to

represent him.” Order, 2/22/17.

       The PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed an

application for relief in this Court seeking to compel the PCRA court to

provide him with the documents necessary for him to file his Rule 1925(b)

statement and brief in this Court, i.e., transcripts, docket entries, filings.

Application for Relief, 3/15/17, at 1-2. This Court ordered the PCRA court to

provide Appellant with “all materials of record necessary for the prosecution
____________________________________________


5 In recounting the procedural history of the case in its 1925(a) opinion, the
PCRA court did not mention Attorney Kinnear’s withdrawal petition filed in
the PCRA court or its January 3, 2017 order granting it. Rather, the PCRA
court indicated that Attorney Kinnear filed a motion to withdraw in the
Superior Court on February 17, 2017, and that this Court permitted the
withdrawal by order of January 12, 2017, which, impossibly, was a month
prior to the filing of the motion.       PCRA Court Opinion, 6/19/17, at
unnumbered 2.



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of the instant appeal” within thirty days.        Order, 3/23/17.      Appellant

requested, and the PCRA court granted, an extension of time for Appellant to

file his Rule 1925(b) statement.

      Appellant filed another application for relief in this Court, complaining

that the PCRA court had failed to provide him with the documents indicated

in this Court’s March 23, 2017 order, and additionally seeking “the scientific

tests of rape kit and biological D.N.A.”      Application for Relief, 5/5/17, at

unnumbered 1. This Court ordered the PCRA court to comply with the March

23, 2017 order forthwith. Order, 5/11/17. The PCRA court responded by

stating that it had no DNA or other scientific reports to provide.

      Appellant filed his concise statement in the PCRA court on May 8,

2017, alleging various instances of ineffectiveness of trial counsel, as well as

claims that Attorney Kinnear was ineffective in failing to, inter alia, amend

Appellant’s pro se PCRA petition and preserve issues for appeal.        Concise

Statement, 5/8/17, at ¶¶ h, k. The PCRA court filed its Rule 1925(a) opinion

on June 19, 2017.      The following day, the PCRA hearing transcript was

docketed, and the record transmitted to this Court. After Appellant filed yet

another application for relief in this Court regarding the PCRA court record,

the PCRA court in November 2017 supplemented the certified record to

include a transcript that had not been filed previously.

      Appellant filed additional applications for relief in this Court, including

requests for extensions of time to file a brief, and a request for remand for


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the appointment of new counsel and a new PCRA hearing based upon claims

that the PCRA court erred in allowing Attorney Kinnear to withdraw. Request

for Relief, 8/31/17.    This Court granted Appellant several extensions for

filing his brief, but declined to grant his request for a remand.    Order,

9/7/17. This appeal is now ripe for our consideration.

     Appellant presents this Court with claims of PCRA court error as well

as allegations that Attorneys Kinnear and Garber rendered ineffective

assistance. Appellants brief at § IV (pages unnumbered).

     We begin with a review of the relevant legal principles. “Our standard

of review of a [PCRA] court order granting or denying relief under the PCRA

calls upon us to determine ‘whether the determination of the PCRA court is

supported by    the    evidence   of record and is free    of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super. 2011)).

     On a first PCRA petition, a petitioner is entitled to the assistance of

counsel to guarantee that he has “at least one meaningful opportunity to

have [his] issues reviewed.”      Commonwealth v. Karanicolas, 836 A.2d

940, 945 (Pa.Super. 2003) (citations and internal quotation marks omitted).

     This Court has admonished, accordingly, that the point in time at
     which a trial court may determine that a PCRA petitioner’s claims
     are frivolous or meritless is after the petitioner has been
     afforded a full and fair opportunity to present those claims. Our
     [S]upreme [C]ourt has recognized that such an opportunity is
     best assured where the petitioner is provided representation by
     competent counsel whose ability to frame the issues in a legally


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      meaningful fashion insures the [PCRA] court that all relevant
      considerations will be brought to its attention.

Commonwealth v. Hampton, 718 A.2d 1250, 1252 (Pa.Super. 1998)

(internal quotation marks and citations omitted).       The right to counsel

“extends throughout the post-conviction proceedings, including any appeal

from the disposition of the PCRA petition.” Commonwealth v. Smith, 121

A.3d 1049, 1053 (Pa.Super. 2015).

      “When appointed, counsel’s duty is to either (1) amend the petitioner’s

pro se [p]etition and present the petitioner’s claims in acceptable legal

terms, or (2) certify that the claims lack merit by complying with the

mandates of Turner/Finley.” Commonwealth v. Cherry, 155 A.3d 1080,

1083 (Pa.Super. 2017). “If appointed counsel fails to take either of these

steps, our courts have not hesitated to find that the petition was effectively

uncounseled.”   Id. (internal quotation marks omitted).

      If there are any issues of arguable merit, counsel must file an

amended petition, exercising professional judgment to determine which

claims to raise therein. This Court has held, in the context of a direct appeal

in which a constitutional right to counsel exists, a defendant may not compel

counsel to pursue even “nonfrivolous points requested by the client, if

counsel, as a matter of professional judgment, decides not to present those

points.”   Commonwealth v. Morrison, 173 A.3d 286, 292-93 (Pa.Super.

2017).




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       Here, Attorney Kinnear chose a hybrid course that finds no support in

the law. See id. (rejecting hybrid brief, and noting “when counsel and an

appellant disagree on which issues should be raised and/or briefed on

appeal, counsel must only raise and/or brief the issues that counsel believes,

consistent    with   counsel’s    ethical      duty,   to   be   nonfrivolous.   If   the

disagreement arises . . . the appellant is free to petition for the withdrawal

of counsel in order for the appellant to attempt to proceed pro se or with

privately-retained counsel.”).        Attorney Kinnear did not file an amended

PCRA petition on Appellant’s behalf.6 Rather, Attorney Kinnear proceeded to

the PCRA hearing on Appellant’s pro se petition, asserted that the pro se

petition raised the issues he would have raised, then proceeded to argue

against his client before and after supposedly advocating for his interests.

Even as to the claim he indicated had the most merit, Attorney Kinnear

expressed an ignorance of the applicable law and confessed to his failure to

examine the entire record. N.T. PCRA Hearing, 12/9/16, at 35-36. Attorney
____________________________________________


6 Of note, Attorney Kinnear proceeded on a theory that Appellant in fact
requested that Attorney Garber file an appeal. He did not pursue a claim
that Attorney Garber failed to consult with Appellant about filing a direct
appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000) (“[C]ounsel
has a constitutionally imposed duty to consult with the defendant about an
appeal when there is reason to think either (1) that a rational defendant
would want to appeal (for example, because there are nonfrivolous grounds
for appeal), or (2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing. In making this determination,
courts must take into account all the information counsel knew or should
have known.”).




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Kinnear additionally misstated the law regarding his duty to amend

Appellant’s petition, and his ability to seek DNA testing of the rape kit under

the   PCRA,     confusingly    raising    the   newly-discovered   facts   timeliness

exception at a hearing on a timely PCRA petition, when a request for DNA

testing is in any event not governed by the PCRA’s timeliness requirements.7

See id. at 37-39 (Attorney Kinnear’s discussion of the testing of the rape kit

as newly-discovered evidence and inquiring of the PCRA court “isn’t there a

60-day time limit … on … new evidence?”).

       The record before us shows that Attorney Kinnear “ultimately

succeeded neither in advancing Appellant’s claims nor certifying their lack of

merit.” Karanicolas, supra at 947. Thus, Appellant’s litigation “of his first

PCRA petition was for all practical purposes uncounseled, depriving Appellant

of the opportunity of legally trained counsel to advance his position in

acceptable legal terms[.]” Id.
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7 See Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013)
(holding one-year timeliness requirement did not apply to a request for DNA
testing under 42 Pa.C.S. § 9543.1, even where “the PCRA petition . . .
comingled the DNA test request with other PCRA-based requests for relief”).

  Attorney Kinnear’s failure to advocate Appellant’s claim with any clarity is
further evidenced by the fact that the PCRA court initially made a finding
that there was “no evidence whatsoever that there was a rape kit” for
testing, and indicated that it would not grant PCRA relief “on the basis of an
imagined piece of evidence[.]” N.T. PCRA Hearing, 12/9/16, at 39. After a
sidebar, held off the record, the PCRA court changed its finding to
acknowledge that both attorneys present informed the court that “there was
some reason to think that a rape kit had been made but that there was no
testing ever done[.]” Id. at 41.



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      Accordingly, we vacate the order which dismissed Appellant’s PCRA

petition and remand for the appointment of new counsel to provide the

representation to which Appellant is entitled under Pa.R.Crim.P. 904(C),

beginning with the filing of an amended PCRA petition or a no-merit letter

which satisfies all of the requirements of Turner and Finley.

      Order vacated.      Case remanded with instructions.      Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2018




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