J-S15019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

MAURICIO JOSE BEDOLLA CAMACHO,

                          Appellant                  No. 672 EDA 2015


               Appeal from the PCRA Order of February 9, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0002109-2008

BEFORE: BENDER, P.J.E., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 11, 2016

        Appellant, Mauricio Jose Bedolla Camacho, appeals pro se from the

order entered on February 9, 2015 dismissing his first petition filed pursuant

to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. After

careful consideration, we vacate and remand.

        The factual background and procedural history of this case are as

follows.    On April 27, 2008, Appellant strangled his ex-girlfriend, Daicy

Vazquez-Bedolla, to death.      On May 1, 2009, Appellant confessed to the

crime. On July 12, 2011, Appellant was found guilty of first-degree murder1

and possessing an instrument of crime.2 On September 22, 2011, he was

sentenced to an aggregate term of life imprisonment without the possibility

1
    18 Pa.C.S.A. § 2502(a).
2
    18 Pa.C.S.A. § 907(a).



* Retired Senior Judge assigned to the Superior Court
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of parole. This Court affirmed in part and vacated in part the judgment of

sentence    and     our   Supreme   Court    denied   allowance    of   appeal.

Commonwealth v. Bedolla Camacho, 60 A.3d 864 (Pa. Super. 2012)

(unpublished memorandum), appeal denied, 72 A.3d 600 (Pa. 2013).3 After

resentencing, Appellant once again appealed and this Court affirmed the

judgment of sentence.        Commonwealth v. Bedolla Camacho, 87 A.3d

894 (Pa. Super. 2013) (unpublished memorandum).

      On January 27, 2014, Appellant filed a pro se PCRA petition. On March

6, 2014, counsel was appointed. On August 1, 2014, counsel filed a petition

to withdraw with an accompanying letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).           Thereafter, Appellant filed a

response to counsel’s petition to withdraw. On January 15, 2015, the PCRA

court issued notice of its intent to dismiss the petition without an evidentiary

hearing.   See Pa.R.Crim.P. 907.     On February 9, 2015, Appellant filed a

response to the Rule 907 notice. That same day, the PCRA court dismissed

Appellant’s PCRA petition and granted counsel’s petition to withdraw. This

timely appeal followed.4


3
  This Court vacated the restitution portion of the judgment of sentence on
procedural grounds.
4
  On March 11, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).    On March 31, 2015, Appellant filed his concise
(Footnote Continued Next Page)


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      Appellant presents four issues for our review:

      [1. Did PCRA counsel and the PCRA court fail to comply with
      Turner/Finley?

      2. Did trial counsel render ineffective assistance of counsel when
      they5 failed to object to the jury having a written copy of the
      jury instructions?

      3. Did trial counsel render ineffective assistance of counsel when
      they failed to object to the Commonwealth’s presentation of
      surprise evidence?

      4. Did trial counsel render ineffective assistance of counsel when
      they failed to object to prior bad acts evidence?]

See Appellant’s Brief at iv.

      In his first issue, Appellant claims that PCRA counsel and the PCRA

court failed to comply with the mandates of Turner/Finley. Specifically, he

argues that PCRA counsel failed to discuss one issue raised in his pro se

PCRA petition and that the PCRA court failed to consider his response to the

Rule 907 notice. Whether PCRA counsel and the PCRA court complied with

Turner/Finley is a question of law; therefore, our standard of review is de

novo and our scope of review is plenary. See Commonwealth v. Rykard,

55 A.3d 1177, 1183-1184 (Pa. Super. 2012).

      Counsel seeking to withdraw in PCRA proceedings

      must review the case zealously. [ C]ounsel must then submit a
      “no-merit” letter to the trial court . . . detailing the nature and
      extent of counsel’s diligent review of the case, listing the issues
                       _______________________
(Footnote Continued)
statement. On July 2, 2015, the PCRA court issued its Rule 1925(a) opinion.
All issues raised on appeal were included in Appellant’s concise statement.
5
  Appellant was represented at trial by two attorneys.



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      which 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 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 . . . 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).

      Appellant argues that PCRA counsel’s Turner/Finley letter was

inadequate because it failed to address one of the claims originally raised in

Appellant’s pro se petition, i.e., trial counsel’s failure to call an expert

witness in support of his heat of passion defense. We agree. In his PCRA

petition, Appellant requested that PCRA counsel investigate and pursue an

ineffectiveness claim based on trial counsel’s failure to hire and call an

expert witness to support his heat of passion defense. See PCRA Petition,

1/27/14, at 16. PCRA counsel did not refer to or discuss this claim in his

Turner/Finley letter and the PCRA court failed to address the claim in its

Rule 907 notice. In his response to the Rule 907 notice, Appellant argued

that PCRA counsel and the PCRA court failed to comply with Turner/Finley

because this issue was overlooked.        See Response to Rule 907 Notice,




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2/9/15, at 9.     In its order dismissing the petition and granting PCRA

counsel’s petition to withdraw, the PCRA court failed to address this issue.

      Therefore, we conclude that PCRA counsel failed to “list[] the issues

which [Appellant] want[ed ] reviewed[ and] explain[] why and how those

issues lack merit[.]” Doty, 48 A.3d at 454. The PCRA court should have

denied PCRA counsel’s petition to withdraw and ordered him to either file an

amended PCRA petition or a compliant Turner/Finley letter. Accordingly,

we vacate the PCRA court’s order dismissing Appellant’s 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.6

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/2016




6
  We also suggest that, if new PCRA counsel is not fluent in Spanish, he or
she use a translator to communicate with Appellant. Appellant is not fluent
in English and communication in English is being accomplished through other
inmates. See Response to Rule 907 Notice, 2/9/15, at 2.



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