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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


    TYRONE DAVIS

                      Appellant            :   No. 2406 EDA 2018

              Appeal from the PCRA Order Entered July 12, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005941-2015

BEFORE:      OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                                FILED JULY 31, 2019

Appellant, Tyrone Davis, appeals pro se from the July 12, 2018 order

dismissing his first petition filed pursuant to the Post -Conviction Relief Act

("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We vacate and remand.

        On January 30, 2017, Appellant entered a plea of nob    contendere to

aggravated assault,' violating the Uniform Firearms Act ("VUFA") as   a   person

not to use or possess firearms,2 and possession of an instrument of crime

("PIC").3    At Appellant's plea hearing, the Commonwealth presented the

factual basis for the plea, which we summarize as follows. On March 26, 2015,

Appellant entered the home of R.S. ("victim"), in the middle of the night,


'   18 Pa.C.S.A. § 2702(a).

2   18 Pa.C.S.A. § 6105(a)(1).

3   18 Pa.C.S.A. § 907(a).



      Retired Senior Judge assigned to the Superior Court.
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without permission.        Appellant   is   the father of the victims' three children.

Appellant woke the victim by putting           a   gun to her head and "tapping her six

to seven times in the head with the gun." N.T., 1/30/2017, at 12. Appellant

fled the residence and the victim called the police.            The victim told officers

where Appellant worked and officers responded to his place of employment.

Officers found Appellant at his place of employment with           a   bullet in his pocket

and    a   firearm on the bathroom floor. Appellant        is a person   not to possess   a

firearm based on     a   1999 rape conviction.

           On May 23, 2017,    after   a    pre -sentence investigation, the trial court

sentenced Appellant to six and one-half to 18 years' incarceration. According

to the docket, Attorney Frederick Lowenberg entered his appearance on May

1, 2015, and is listed as Appellant's         attorney as late as November 2, 2017.4
Thus, Attorney Lowenberg           represented        Appellant throughout the case,

including Appellant's plea and sentencing hearings. Following the imposition

of sentence, no post -sentence motions or notices of direct appeal were

entered on the docket. On March 22, 2018, Appellant filed                 a   timely pro se

PCRA       petition. On April 3, 2018, the PCRA court appointed Attorney Judge

Hall to serve as PCRA counsel.               On June 8, 2018, PCRA counsel filed a

Turner/Finley5 letter stating that Appellant's claims are without merit.                On


4   Following sentencing, Attorney Lowenberg continued to represent Appellant
in an    accompanying civil forfeiture matter.

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.

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

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June 11, 2018, the PCRA court sent Appellant                 a   notice of dismissal pursuant

to Pa.R.Crim.P. 907.       Appellant responded on June 28, 2018.                 On July 12,

2018, the PCRA court dismissed Appellant's petition and granted Attorney

Hall's petition to withdraw.           Appellant filed   a   notice of appeal on August 6,

2018.        The PCRA court filed its Pa.R.A.P. 1925(a) opinion on October 31,

2018.6

        Appellant presents the following issues on appeal.

        1.   Whether the trial court erred by not hearing [Appellant's]
             pre-trial motions that were properly filed with the court[] and
             docketed prior to [Appellant] retaining counsel[?]

        2. Whether     the trial court erred by unlawfully prosecuting
             [Appellant] in violation of his rights guaranteed by the
             Pennsylvania Constitution Article 1 § 9 [and the 14th
             Amendment to the United States Constitution?]

        3. Whether the       trial court erred by prosecuting [Appellant]
              unlawfully by not adhering to the Pa.R.Crim.P. 540[?]

        4. Whether the       trial court erred by knowingly prosecuting
              [Appellant] for crimes where no probable cause [and/or]
              evidence existed[?]

        5.   Whether the trial court erred by prosecuting [Appellant] with
             suppose[d] evidence unlawfully obtained by the police[?]

        6. Whether the trial           court erred by knowingly allowing the
              prosecution to use   a    defective warrant[?]

        7. Whether the [PCRA] court erred by no[t] granting [Appellant's]
           PCRA petition for ineffective assistance of counsel[?]


6   It appears from the record that the          court did not issue an order
                                                   PCRA
instructing Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant's brief, however, fails to
acknowledge that fact, in violation of Pa.R.A.P. 2111(d).
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        8. Whether the [PCRA] court erred by not granting [Appellant's]
           answer to [the Rule] 907 Notice because [of]     a nob     contendere
           plea[?]

        9. Whether the    [trial] court erred by preventing [Appellant] from
           timely filing his direct appeal motion[?]

       10. Whether the [trial] court erred by sentencing [Appellant for]
           aggravated assault, possession of an instrument of crime[,]
           and [VUFA?]

Appellant's Brief at 5-6.

        When reviewing the denial of  a PCRA petition, we must determine
        whether the PCRA court's order is supported by the record and
        free of legal error. Commonwealth v. Smith, 181 A.3d 1168,
        1174 (Pa. Super. 2018). Generally, we are bound by a PCRA
        court's credibility determinations. However, with regard to a
        court's legal conclusions, we apply a de novo standard. Id.

Commonwealth v. Lee, 206 A.3d            1, 6 (Pa. Super. 2019).

        Our disposition of this case involves only one issue, issue number nine,

in which   Appellant alleges that the trial court prevented him from filing   a    direct

appeal. Appellant contends that he filed      a   pro se notice of appeal on May 24,

2017-the day after          his    sentencing-at which       point,    Appellant was

represented by Attorney Lowenberg. Appellant further alleges that said notice

of appeal and the accompanying motions were returned to him by the court

on June 12, 2017, with the handwritten notation, "sentenced              9-15-2015[,]

untimely[,] must file    PCRA to   reinstate appellate rights." Appellant's Brief at

R.R. 9. As noted above, the court actually sentenced Appellant in this         matter

on May 23, 2017.        In its 1925(a) opinion, the PCRA court addressed this

contention as follows.

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        [Appellant] states that the [submission][7] was returned to him on
        June 12, 2017. This was still well within his 30 day time period to
        file a timely direct appeal. [Appellant] does not explain why he
        did not immediately file a notice of appeal since he knew the
        notation that he referenced regarding his date of sentencing was
        erroneous as it relates to this case. Furthermore, [Appellant] does
        not state why he waited nearly a year, until March 22, 2018, to
        file a PCRA petition if he in fact desired a direct appeal[.]
PCRA Court Opinion,    10/31/2018, at 9.

        We find that the PCRA court's disposition of this issue was error. "When

a    counseled defendant files   a   pro se document, it      is   [to be]     noted   on

the docket and forwarded to counsel pursuant to Pa.R.Crim.P. 576(A)(4)[.]"

Commonwealth v. Williams,                151 A.3d 621, 623 (Pa. Super. 2016), citing

Pa.R.Crim.P. 576 cmt. ("The requirement that the clerk time stamp and

make docket entries of the filings in these cases only serves to provide                a

record of the filing, and does not trigger any deadline nor require any

response."). Moreover, when          a   counseled defendant files   a   pro se notice of

appeal, in order to protect the defendant's constitutional right to an appeal, it

is   to be noted on the trial court docket and then forwarded to this Court and

docketed. Williams, 151 A.3d at 624.

        Appellant alleges in his PCRA petition that he filed         a   pro se notice of

appeal and accompanying motions one day after the imposition of his


   Appellant's PCRA petition, at one point, refers to his May 24, 2017 attempted
filing as a post -sentence motion, whereas his brief on appeal identifies the
submission as a notice of appeal (and accompanying motions). The certified
record does not include any of Appellant's alleged submissions; however, his
appellate brief contains these documents as exhibits.



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sentence.8 At that time, Attorney Lowenberg still represented Appellant, and

post -sentence motions and/or       a   direct appeal could have been timely filed.

However, there    is no    indication on the docket that those documents were

received or forwarded to counsel in compliance with Pa.R.Crim.P. 576(a)(4),

nor was Appellant's alleged notice of appeal forwarded to this Court.               If
proven, Appellant's assertions may establish       a   cognizable PCRA claim that    a

breakdown in the court system deprived him of his right to          a   direct appeal.

See 42 Pa.C.S.A.     §    9543(2)(iv).     The certified record is not sufficiently

developed for this Court to determine whether Appellant is entitled to relief,

however, the presence of     a   potentially meritorious issue makes it error for the

PCRA    court to permit counsel to withdraw. On remand, the PCRA court shall

appoint    new   counsel     and    conduct    proceedings consistent      with   this

memorandum.

        Order vacated. Case remanded for further proceedings.             Jurisdiction

relinquished.




8 To substantiate his claims, Appellant's brief includes as exhibits: the
purported notice of appeal; the handwritten indication that his notice of appeal
was untimely; a "Post[ -]Sentence- Direct Appeal Motion"; a request to
proceed in forma pauperis for purposes of appeal and for appointment of
appellate counsel; a certificate of service; a verification; and a motion for
leave to file additional papers. Appellant's Brief at R.R. 3-10.


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Judgment Entered.




Jseph  D. Seletyn,
Prothonotary



Date: 7/31/19




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