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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KAHYAN HARRIS,                             :
                                               :
                       Appellant.              :     No. 3764 EDA 2017


                Appeal from the PCRA Order, October 13, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0015135-2009.


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                               FILED APRIL 17, 2019

        Kahyan Harris appeals pro se from the order dismissing his first petition

filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546.

After careful consideration, we vacate and remand.

        The pertinent facts and procedural history are as follows: A jury found

Harris guilty of second-degree murder, robbery, conspiracy and possession of

an instrument of crime in connection with the shooting death and robbery of

Daryl    Marks.        Co-defendant,       Brandon    Huggins,   testified   for   the

Commonwealth at trial. The trial court sentenced Harris to an aggregate term

of life imprisonment.1 Harris filed a timely appeal. This Court affirmed his
____________________________________________


1 On the date of sentencing, Harris pled guilty to four unrelated offenses. As
part of the negotiation, the court ordered his sentences on those cases to run
concurrently with the instant case. Those four cases are not the subject of
this appeal.
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judgment of sentence. Commonwealth v. Harris, 107 A.3d 233 (Pa. Super.

2014) (unpublished memorandum).                On April 4, 2015, our Supreme Court

denied Harris’ petition for allowance of appeal. Commonwealth v. Harris,

113 A.3d 278 (Pa. 2015).

       On March 28, 2016, Harris filed several documents pro se:               an

“uncounseled” PCRA petition; a timely “uncounseled” amended petition; a

motion for production of transcripts and related documents; a motion for the

appointment of counsel, and a motion to proceed in forma pauperis.             On

January 27, 2017, the PCRA court appointed counsel. On July 19, 2017, PCRA

counsel filed a “no-merit” letter and motion to withdraw pursuant to the

dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

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

       On August 8, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss Harris’ petition without a hearing based upon PCRA

counsel’s Turner/Finley letter and because the issues raised in the petition

were without merit. After the PCRA court granted an extension, on October

11, 2017, Harris filed a pro se response, in which he raised four additional

ineffectiveness claims regarding trial and appellate counsel, and asserted that

PCRA counsel was ineffective for failing to file an amended petition raising

these claims.2 By order entered October 13, 2017, the PCRA court dismissed
____________________________________________


2 Prior to filing this response, Harris had filed a motion for DNA testing on
September 12, 2017, and PCRA counsel filed a supplemental Turner/Finley
letter on October 9, 2017.


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Harris’ petition as “lacking in merit.” This appeal followed. Both Harris and

the PCRA court have complied with Pa.R.A.P. 1925.

       Harris raises the following issues:

          A. Did not the PCRA Court err in failing to consider Harris’
             Motion for Leave to Amend PCRA petition and his first
             Amended PCRA petition?

          B. Did not the PCRA court err in failing to consider Harris’
             Response to PCRA counsel’s Finley letter and the PCRA
             court’s Rule 907 notice to dismiss, prior to granting PCRA
             counsel’s Finley letter and dismissing without a hearing
             Harris’ PCRA petition?

          C. Did not the PCRA court err in granting PCRA counsel’s
             Finley letter which failed to comport with applicable legal
             standards governing withdrawal of representation in post
             conviction proceedings?

See Harris’ Brief at 4.3

       Because these issues essentially argue that both PCRA counsel and the

PCRA court did not comply with the mandates of Turner/Finley, supra, we

will address them together.          As this claim raises a question of law, our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (citation

omitted).

       Counsel seeking to withdraw in PCRA proceedings:

          Must review the case zealously. [C]ounsel must then submit
          a “no-merit” letter to the [PCRA court] or brief on appeal to

____________________________________________


3  Despite this Court granting the Commonwealth three extensions, it never
filed an appellate brief.


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         this Court detailing the nature and extent of counsel’s
         diligent review of the case, listing the issues which [the]
         petitioner wants to have reviewed, explaining why and how
         those issues lack merit, and requesting permission to
         withdraw.

         Counsel must also send to the petitioner: (1) a copy of the
         “no merit” letter/brief (2) a copy of counsel’s petition to
         withdraw; and (3) a statement advising [the] petitioner of
         the right to proceed pro se or by new counsel.

                                       ***

         Where counsel submits a petition and no-merit letter that
         satisfy the technical demands of Turner/Finley, the court—
         the [PCRA court]—must then conduct its own review of the
         merits of the case. If the court agrees with counsel that the
         claims are without merit, the court will permit counsel to
         withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (internal

alteration, ellipses, and citation omitted).

      Harris argues that PCRA counsel’s initial Turner/Finley letter was

“woefully defective and should have resulted in the denial of his request to

withdraw as counsel.” Harris’ Brief at 10. We agree. Our review of Harris’

pro se petitions reveals that PCRA counsel opined that the two people

identified by Harris in his pro se petition were not, in fact, alibi witnesses. In

his Turner/Finley letter, PCRA counsel made no mention of Reba Bush and

Salesse Austin, two women Harris identified as alibi witnesses in his amended

pro se PCRA petition, and for which he provided witness certifications. Harris

further claims that PCRA counsel overlooked the four issues he raised in his

response to the Rule 907 notice.




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      For its part, before dismissing Harris’ PCRA petition, the PCRA court

neither addressed Harris’ claim of PCRA counsel’s ineffectiveness, nor the four

allegedly meritorious issues raised by Harris in his response. In its Pa.R.A.P.

1925(a) opinion, the PCRA court does not address any of these issues, but

rather states only in a conclusory fashion that it reviewed PCRA counsel’s

Finley letters, and “finds them sufficient. After independently reviewing the

merits of this case, this court finds [Harris’] PCRA Petition lacks merit.” PCRA

Court Opinion, 6/12/18, at 3.

      Based on our review of Harris’ claims, we conclude that PCRA counsel

failed to fully address the issues Harris raised in his pro se petitions, and that

the PCRA court should have denied PCRA counsel’s petition to withdraw and

ordered him to file either an amended PCRA petition or a compliant

Turner/Finley letter.      Accordingly, we vacate the PCRA court’s order

dismissing Harris’ PCRA petition and remand for the appointment of new PCRA

counsel. New PCRA counsel shall review the record and file either an amended

petition or a compliant Turner/Finley letter.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/19

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