J-S15022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RUSSELL A. WALLERY,

                            Appellant                No. 3243 EDA 2014


             Appeal from the PCRA Order Entered October 22, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0001596-2009


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

CONCURRING MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 02, 2016

        I am compelled to concur with the Majority that, under the law as it

currently stands, we cannot review Appellant’s claims of PCRA counsel’s

ineffectiveness, as they are being raised for the first time on appeal. I write

separately, however, to express my continued disagreement with the legal

authority that prevents such review and makes it impossible, in cases such

as this, for a petitioner to obtain state-level relief for the ineffective

assistance of the attorney representing him in the litigation of his first PCRA

petition.1
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  For more on this point, see my dissenting opinion in Commonwealth v.
Henkel, 90 A.3d 16, 32-37 (Pa. Super. 2014) (en banc) (J. Bender,
dissenting).
J-S15022-16



       Here, Appellant was represented by the ostensibly ineffective attorney

during the entire litigation of his petition before the PCRA court; thus, he

could not have filed a pro se, amended petition asserting his ineffectiveness

claims below.2     See Commonwealth v. Cooper, 27 A.3d 994, 1000 n. 9

(Pa. 2011) (stating that a “criminal defendant has no right to hybrid

representation in either [the] trial or appellate courts”).              Additionally,

current counsel, Tyree Blair, Esq., was not appointed to represent Appellant

until this appeal was underway; therefore, the PCRA court would have been

without jurisdiction to rule on any ineffectiveness claims, even had Attorney

Blair attempted to raise them below.              Finally, more than one year has

passed since Appellant’s judgment of sentence became final; consequently,

he cannot file a timely, second petition asserting the claims he raises herein,

nor would raising such claims meet any exception to the PCRA’s one-year

time-bar.    See 42 Pa.C.S. § 9545; Commonwealth v. Morris, 822 A.2d

684,    694–95     (Pa.    2003)     (stating    that   claims   of   PCRA   counsel's

ineffectiveness do not save an otherwise untimely PCRA petition).

       In sum, Appellant was - and continues to be - completely deprived of

any ability to enforce his rule-based right to effective assistance of PCRA

counsel at the state level. In cases such as this, I firmly believe that this

Court should be permitted to assess PCRA counsel ineffectiveness claims
____________________________________________


2
 In any event, I would also decline to expect a pro se litigant to recognize,
and correctly assert, claims of PCRA counsel’s ineffectiveness.




                                           -2-
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that are raised for the first time on appeal, or at least have the power to

remand to the PCRA court for its examination in the first instance.

Unfortunately, decisions by our Supreme Court, and a majority of this Court

in Henkel, have precluded us from doing so.




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