J-S57045-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  Appellee                 :
          v.                               :
                                           :
CLARENCE BURBAGE,                          :
                                           :
                  Appellant                :   No. 3692 EDA 2017

                  Appeal from the PCRA Order November 9, 2017
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0001040-2012
                                           CP-51-CR-0001045-2012

BEFORE:        PANELLA, J., PLATT, J.* and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED APRIL 03, 2019

     Clarence Burbage (Appellant) appeals from the November 9, 2017

order, which dismissed his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.      Upon review, we vacate the

order and remand for proceedings consistent with this memorandum.

     We provide the following background.        On May 22, 2011, Appellant

participated in the shooting of Danny Williams in his left buttocks in an

attempt to kill him.          An arrest warrant was issued for Appellant.

Subsequently, on May 27, 2011, Appellant shot Williams eight times, and

Williams was killed.    Appellant was charged at docket number CP-51-CR-

0001040-2012 (docket 1040) with both attempted murder and robbery, and

at docket number CP-51-CR-0001045-2012 (docket 1045) with first-degree

murder and related charges. A consolidated jury trial was held on May 31,


*Retired Senior Judge assigned to the Superior Court.
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2013, and Appellant was found guilty of numerous charges at both docket

numbers. Appellant was sentenced to life in prison without parole (LWOP)

for the first-degree murder conviction.         He was also sentenced to a

concurrent term of five-to-ten years of incarceration for the robbery

conviction. No further penalty was imposed on the remaining charges. This

Court affirmed Appellant’s judgment of sentence on August 21, 2015, and

our Supreme Court denied Appellant’s petition for allowance of appeal on

April 5, 2016. See Commonwealth v. Burbage, 131 A.3d 98 (Pa. Super.

2015), appeal denied, 136 A.3d 978 (Pa. 2016).

      On November 8, 2016, Appellant timely filed a pro se PCRA petition at

both docket numbers.1          On February 3, 2017, Attorney James A.

Lammendola was appointed to represent Appellant.          On October 2, 2017,

Attorney Lammendola filed a no-merit letter and petition 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).2 On




1 In that petition, Appellant asserted that trial counsel was ineffective for not
bringing forth information that Appellant was unarmed at the second
incident until Williams reached for a weapon; that trial counsel was
ineffective for not explaining that “intent is part of the test for [first-]degree
murder;” that trial counsel was ineffective for failing to explore “included
lesser offenses;” and that trial counsel was too inexperienced to handle this
case. See PCRA Petition, 11/8/2016, at 3-4.

2 Although both docket numbers are listed on the no-merit letter, it was filed
only at docket 1040. In this filing, counsel set forth the aforementioned
issues raised in Appellant’s pro se PCRA petition. He also considered the


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October 5, 2017, the PCRA court filed notice of its intent to dismiss

Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.3 On October 23,

2017, Attorney Wimmer sent a letter to the PCRA court, which was entitled

“Response to 907 Notice,” where she raised three issues: 1) a claim that

Attorney Lammendola was ineffective by not addressing all issues set forth

in Appellant’s pro se PCRA petition; 2) a claim that Attorney Lammendola

was ineffective for failing to amend Appellant’s PCRA petition to include an

additional claim regarding ineffective assistance of direct appeal counsel;

and 3) a request for an evidentiary hearing or permission to amend

Appellant’s PCRA petition. Response to 907 Notice, 10/23/2017.

        On November 9, 2017, the PCRA court dismissed Appellant’s PCRA

petition by entry of separate orders at each docket number.       Also in that

order, the PCRA court permitted Attorney Lammendola to withdraw.4          On

November 16, 2017, Appellant, through Attorney Wimmer, filed a single



issue of whether trial counsel was ineffective for not challenging the LWOP
sentence. Turner/Finley Letter, 10/2/2017, at 8.

3 That notice was filed only at docket 1045. In dismissing a petition without
a hearing pursuant to Pa.R.Crim.P. 907, a PCRA court “shall state in the
notice the reasons for the dismissal.” Pa.R.Crim.P. 907(1). The PCRA court’s
907 notice merely checks 2 boxes: 1) “[t]he issues raised in your pro se
PCRA petition are without merit,” and 2) “[y]our attorney has determined
that the issues raised in your pro se PCRA petition are without merit.” See
Pa.R.Crim.P. 907 Notice, 10/5/2017. Importantly, this notice did not permit
Attorney Lammendola to withdraw as counsel.

4   Attorney Wimmer was listed as counsel for Appellant on this order.



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notice of appeal.5 On November 9, 2017, the PCRA court authored an

opinion, which listed both dockets in its caption.6

        Appellant has raised several issues on appeal, and we begin with his

claim that the PCRA court “committed an abuse of discretion by failing to

permit newly-retained counsel to file an amended PCRA petition.” Appellant’s

Brief at 18-19. In his response to the 907 notice, Appellant requested that

the PCRA court grant him “45 days to file an amended PCRA petition.”7


5  The appeal was filed at docket 1045, but listed both docket numbers on the
filing. On February 21, 2018, this Court issued a rule to show cause to
Appellant as to why the appeal should not be quashed for failure to file
separate notices of appeal at each docket number. Appellant timely filed a
response, arguing we should not quash this appeal because the notice of
appeal listed both docket numbers. Response, 2/23/2018.

      The Official Note to Pennsylvania Rule of Appellate Procedure 341(a)
provides that “[w]here … one or more orders resolves issues arising on more
than one docket … separate notices of appeal must be filed.” On June 1,
2018, in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our
Supreme Court acknowledged that this rule has been applied inconsistently
in the past. Thus, it held that for appeals filed after Walker, “when a single
order resolves issues arising on more than one lower court docket, separate
notices of appeal must be filed.” Id. at 977.

      Here, the notice of appeal was filed prior to Walker. Furthermore,
throughout these PCRA proceedings, both the PCRA court and counsel filed
various pleadings and orders listing both docket numbers at only one of the
docket numbers. This has clearly created confusion in the certified record
and perhaps confusion for the court, attorneys, and parties. Thus, we
decline to quash this appeal.

6 That opinion was filed on November 9, 2017, at docket 1045 and on
November 16, 2017, at docket 1040. The PCRA court did not order a
Pa.R.A.P. 1925(b) statement, and none was filed.

7   The PCRA court did not address this issue in its opinion.



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Response to 907 Notice, 10/23/2017, at ¶ 3; Appellant’s Brief at 18-19. The

Commonwealth argues that amendment would be futile because Appellant’s

claims provide no basis for relief. Commonwealth’s Brief at 18.

      A PCRA court “may grant leave to amend or withdraw a petition for

post-conviction collateral relief at any time. Amendment shall be freely

allowed to achieve substantial justice.” Pa.R.Crim.P. 905(A).      Moreover,

amendment may be requested in response to a Rule 907 notice.8 See

Pa.R.Crim.P. 907(1).

      PCRA courts are invested with discretion to permit the
      amendment of a pending, timely-filed post-conviction petition,
      and … the content of amendments [do not have to] substantively
      align with the initial filing. Rather, the prevailing rule remains
      simply that amendment is to be freely allowed to achieve
      substantial justice. The Court has recognized that adherence to
      such rules governing post-conviction procedure is particularly
      appropriate since, in view of the PCRA’s time limitations, the
      pending PCRA proceeding will most likely comprise the
      petitioner’s sole opportunity to pursue collateral relief in state
      court.

Commonwealth v. Flanagan, 854 A.2d 489, 499-500 (Pa. 2004) (internal

citations omitted).    See also Commonwealth v. Mason, 130 A.3d 601,

627 (Pa. 2015) (“The petitioner bears the onus of informing the PCRA court



8 See Commonwealth v. Rykard, 55 A.3d 1177, 1187 (Pa. Super. 2012)
(“Rule 907, which provides the requirement of a notice of intent to dismiss
and allows for the optional filing of a response, states that a PCRA court may
dismiss a petition, grant leave to file an amended petition, or direct that
proceedings continue twenty days after the date of the notice of dismissal,
including if a defendant responds to the dismissal. The rule does not treat a
response to its notice of dismissal as either an amended petition or a serial
petition.”).


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that he or she seeks to add claims through an amended petition, and, in

response, the court shall freely grant leave to amend where doing so

achieves substantial justice consistent with the dictates of Pa.R.Crim.P.

905(A).”); Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa. Super. 2003)

(noting it was within the PCRA court’s discretion to consider supplemental

issues raised by petitioner after counsel was permitted to withdraw pursuant

to Turner/Finley); c.f. Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa.

Super. 2014) (“Where a petitioner does not seek leave to amend his petition

after counsel has filed a Turner/Finley no-merit letter, the PCRA court is

under no obligation to address new issues.”).       Rule 905(A) has been

interpreted to “expressly allow [ ] a [PCRA] court substantial latitude to

permit the amendment of the petition at any time after the petition’s initial

filing.” Boyd, 835 A.2d at 816.

     Instantly, Attorney Wimmer attempted to enter her appearance two

weeks after the PCRA court filed its Rule 907 notice, but prior to the PCRA

court’s permitting Attorney Lammendola to withdraw. Four days after that

she filed a response to the 907 notice requesting an additional 45 days to

amend Appellant’s petition.   Rather than stating that it was denying that

motion, or explaining why it was denying the motion, the PCRA court

summarily dismissed the petition.    In its Pa.R.A.P. 1925(a) opinion, the

PCRA court recognized the filing of a 907 response, but did not acknowledge




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that Attorney Wimmer requested leave to amend Appellant’s PCRA petition.

See PCRA Court Opinion, 11/9/2017, at 2 n.3.

      In considering this issue, we look to our Supreme Court’s recent

decision in Commonwealth v. Crispell, 193 A.3d 919 (Pa. 2018), for

guidance.   In Crispell, the petitioner sought to amend his PCRA petition,

and the PCRA court refused to permit amendment based on its incorrect

belief that it lacked jurisdiction to do so because any amendment would be a

second, untimely-filed PCRA petition. In concluding the PCRA court erred by

utilizing a jurisdictional test when considering an amendment, our Supreme

Court offered the following:

      The PCRA court in this case exercised no discretion in addressing
      Crispell’s motion to amend. Rather, the court premised its ruling
      upon its mistaken belief that it lacked jurisdiction to address the
      claim in any event. The only option available to this Court, at
      this juncture, is to remand this case back to the PCRA court, so
      that the court may consider Crispell’s motion for leave to amend
      in accord with the liberal standard of Rule 905(A). See
      Commonwealth v. Baumhammers, [] 92 A.3d 708, 730-31
      ([Pa.] 2014) (providing that leave to amend must be sought and
      obtained before the new claim can become part of the
      proceedings).

Crispell, 193 A.3d at 930.

      In the instant matter, the record does not reflect whether the PCRA

court ever considered Appellant’s motion to amend his PCRA petition.9 Thus,



9 To the extent the Commonwealth or the PCRA court would assert that the
PCRA court’s decision to deny Appellant PCRA relief has implicitly denied
Appellant’s request to amend, we hold that pursuant to Crispell, and in this
case, that is not enough. When amendment is requested, the PCRA court


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as in Crispell, we conclude that the PCRA court exercised no discretion in

considering Appellant’s request to amend his PCRA petition. Accordingly, the

only option available to this Court is to remand to the PCRA court for a ruling

on Appellant’s motion for leave to amend his PCRA petition.        If the PCRA

court, using the aforementioned liberal standard, permits the amendment,

then Attorney Wimmer shall proceed as directed by the PCRA court. If the

PCRA court denies Appellant permission to amend his petition, the PCRA

court shall enter an order explaining its rationale for that conclusion. Also in

that order, the PCRA court shall, once again, dismiss Appellant’s PCRA

petition, so that Appellant can file a new notice of appeal if he wishes.

      Order vacated.    Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

*Judge Platt did not participate in the consideration or decision of this case.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 4/3/19

must expressly grant or deny such relief. The PCRA court may offer its
explanation for its decision to deny either in the order itself or in a Rule
1925(a) opinion.


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