J-S29019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHARLES JACOB BERGER

                            Appellant                 No. 1173 WDA 2015


                    Appeal from the PCRA Order July 7, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000898-2008


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED JUNE 27, 2016

        Appellant, Charles Jacob Berger, appeals from the order entered July

7, 2015, in the Court of Common Pleas of Fayette County, which denied his

Post Conviction Relief Act1 (“PCRA”) petition. Additionally, Berger’s privately

retained counsel, James E. DePasquale, Esquire, has filed an application to

withdraw as counsel. After careful review, we deny counsel’s application to

withdraw and remand for further proceedings.

        On March 7, 2011, a jury convicted Berger of possession with intent to

deliver cocaine, possession of cocaine and driving under the influence of a

controlled substance. The trial court sentenced Berger on the conviction of
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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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possession with intent to deliver cocaine to seven to fourteen years’

imprisonment, and         to   a consecutive     term of three to   six months’

incarceration on the conviction of driving under the influence of a controlled

substance.     On appeal, this Court affirmed Berger’s judgment of sentence

and our Supreme Court denied his petition for allowance of appeal. See

Commonwealth v. Berger, 1134 WDA 2011 (Pa. Super., filed Jan. 10,

2013) (unpublished memorandum), appeal denied, 72 A.3d 599 (Pa.

2013).

       Thereafter, Berger privately retained Attorney DePasquale to file a

PCRA petition. On October 2, 2013, Attorney DePasquale filed a timely PCRA

petition on Berger’s behalf alleging ineffective assistance of trial counsel.

Following an evidentiary hearing, the PCRA court denied Berger’s petition.

Although Attorney DePasquale maintains that he was not paid to do so, he

filed a timely appeal from the denial of the PCRA petition at Berger’s

request.

       This panel subsequently received an appellate brief prepared by

Attorney DePasquale, in which counsel conceded that Berger could not

satisfactorily establish his claim of ineffective assistance of counsel. 2 Given


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2
  See Appellant’s Brief, at 7 (noting there is “ample support in the record” to
support the PCRA court’s conclusion that trial counsel did not render
ineffective assistance of counsel); at 8 (noting evidence “is not sufficient to
prove ineffective assistance of trial counsel”); and at 11 (concluding that “it
cannot be sustained on appeal that trial counsel was ineffective”).



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the nature of counsel’s argument—arguing against his client’s interests—we

mistakenly concluded that Attorney DePasquale served as Berger’s court-

appointed counsel. We therefore remanded this case with instructions that

Attorney DePasquale file an “application for leave to withdraw as counsel”

that comports with the requirements announced in Commonwealth v.

Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley,

550 A.2d 213 (Pa. Super. 1988).

      Counsel has purported to comply with our directive; however, his

application does not even contain the requisite “statement advising the PCRA

petitioner that, in the event the trial court grants the application of counsel

to withdraw, the petitioner has the right to proceed pro se, or with the

assistance of privately retained counsel.” Commonwealth v. Friend, 896

A.2d 607, 615 (Pa. Super. 2006). Counsel’s petition to withdraw was

therefore deficient.

      Nonetheless, given that Attorney DePasquale remains Berger’s private

counsel of record, we find that counsel should have moved to withdraw his

appearance in the PCRA court, rather than seek withdrawal from this Court.

See Pa.R.Crim.P. 120(B). Had counsel done so previously, he would have

afforded Berger the ability to seek new private counsel or to request the

PCRA court to appoint counsel. See Pa.R.Crim.P. 904(C). As this matter now




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stands, Berger has been effectively deprived of a proper advocate’s brief

from counsel he privately retained. This cannot stand.3

       We therefore remand this case for further proceedings. The PCRA court

is directed to hold a hearing within sixty days of the date of this decision to

determine: (1) whether the PCRA court will permit Attorney DePasquale to

withdraw; (2) whether Berger wishes to proceed pro se; (3) if Berger does

wish to proceed pro se, to hold a colloquy to determine whether he

knowingly and intelligently waives his right to counsel; (4) if Attorney

DePasquale is permitted to withdraw and Appellant does not wish to proceed

pro se, to determine whether Appellant is eligible for court appointed counsel

on appeal and to appoint counsel if appropriate.            See Pa.R.Crim.P.

120(B)(3); 904(C).

       Following the filing of the PCRA court’s decision in this Court, our

Prothonotary is directed to establish a new briefing schedule.

       Counsel’s petition to withdraw is denied. Case remanded with

instructions. Jurisdiction retained.



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3
  Attorney DePasquale’s argument against his client in the merits brief
causes us great concern. We are thus constrained to remind Attorney
DePasquale of his ethical obligations and that “[a] lawyer has a sacred duty
to defend his … client.” Commonwealth v. Spotz, 99 A.3d 866, 869 (Pa.
2014). Attorney DePasquale’s actions in this case are inexcusable and have
needlessly delayed resolution of this appeal.




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