J-S12042-20



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    GILES W. WITHERSPOON                   :
                                           :
                     Appellant             :   No. 1860 EDA 2019

                  Appeal from the Order Entered May 30, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000086-2000


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

CONCURRING MEMORANDUM BY SHOGAN, J.:                   FILED JUNE 30, 2020

        I concur in the result reached by the Majority wherein it concluded

Appellant is entitled to no relief because the February 14, 2019 petition should

have been considered an untimely post-sentence motion. I write separately

to note that under certain circumstances, an untimely post-sentence motion

may be considered a petition under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. Commonwealth v. Evans, 866 A.2d 442, 443-

444 (Pa. Super. 2005).

        In Evans, this Court explained that regardless of the title of the

document filed, convicted petitioners seeking post-conviction relief must be




*   Retired Senior Judge assigned to the Superior Court.
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afforded the assistance of counsel in filing a first PCRA petition. Evans, 866

A.2d at 444.   This construct protects an indigent petitioner’s right to file a

counseled first PCRA petition. Id.; Commonwealth v. Guthrie, 749 A.2d

502, 504 (Pa. Super. 2000).

      The holding from Evans, however, provides no benefit to Appellant in

the instant case. Herein, Appellant had the benefit of counsel in pursuing his

first PCRA petition.1 Therefore, Appellant exercised his right to, and received

the benefit of, a counseled PCRA petition. Accordingly, Evans is inapplicable,

and there is no basis upon which to deem Appellant’s untimely post-sentence

motion a PCRA petition.

      Judge McCaffery joins. Judge Colins joins.




1 The record reveals the PCRA court appointed counsel to represent Appellant
throughout the pursuit of his first PCRA petition. Order, 6/22/05; Order,
5/19/08; Order, 7/28/08.
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