J-S69044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                 v.                              :
                                                 :
                                                 :
    ELIJAH FLEMING                               :
                                                 :
                       Appellant                 :   No. 3349 EDA 2018

             Appeal from the PCRA Order Entered October 24, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001341-2013


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

MEMORANDUM BY COLINS, J.:                                  FILED APRIL 27, 2020

        Appellant, Elijah Fleming, pro se, appeals from the order of the Court of

Common Pleas of Philadelphia County, that dismissed his first petition filed

under the Post Conviction Relief Act (PCRA)1 without a hearing. We vacate

the    order    and   remand     for   further   proceedings   consistent   with   this

memorandum.

        After a jury trial, Appellant was found guilty of first degree murder,

conspiracy, and unlawful possession of a firearm.2              On May 15, 2014,

Appellant was sentenced to an aggregate sentence of life in prison without the

possibility of parole. Appellant filed a direct appeal and on March 7, 2016,

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541–9546.

2   18 Pa.C.S. §§ 2502(a), 903, and 6105, respectively.
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this Court affirmed Appellant’s judgment of sentence.         Appellant filed a

petition for allowance of appeal with the Pennsylvania Supreme Court, which

the Court denied on September 7, 2016.

      On August 1, 2017, Appellant filed this first, pro se, petition pursuant to

the PCRA raising several claims of ineffective assistance of counsel and various

constitutional violations.   Appellant filed a supplemental PCRA petition on

February 7, 2018. On March 15, 2018, George S. Yacoubian, Esquire was

appointed as PCRA counsel. On September 17, 2018, PCRA counsel filed a

“no merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc), seeking to withdraw his appearance based on his assessment that all

the issues Appellant raised in his PCRA petitions were without merit.        On

September 24, 2018, the PCRA court entered a notice of intent to dismiss all

claims without a hearing pursuant to Pa.R.Crim.P. 907 (Rule 907 Notice). On

October 10, 2018, Appellant filed a response to the Rule 907 Notice, stating

that he did not receive a copy of counsel’s “no merit” letter. On October 25,

2018, the PCRA court filed an order that dismissed Appellant’s PCRA petition

for lack of merit based upon counsel’s “no merit” letter and permitted PCRA

counsel to withdraw. On November 8, 2018, Appellant filed this timely notice

of appeal.

      Appellant presents the following issues for our review:
        1. Whether the PCRA court erred by failing to provide
            Petitioner with a copy of counsel’s Finley letter prior to
            the dismissal of the PCRA, which in turn failed to provide
            Petitioner with an opportunity to respond to the Finley

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          letter prior to the dismissal of his PCRA in violation of the
          due process clause.

       2. Whether PCRA counsel rendered ineffective assistance of
          counsel.

       3. Whether Petitioner was deprived of the effective
          assistance of direct appeal counsel when counsel failed
          to raise the issue that the state violated the fourteenth
          amendment’s due process guarantee when it knowingly
          presented and failed to correct the false testimony of
          Kareem Terry at the time of Petitioner’s trial.

       4. Whether Petitioner was deprived of the effective
          assistance of counsel and the right to confrontation
          guaranteed by the sixth amendment when trial counsel
          failed to properly object to the revelation of a
          nontestifying codefendant’s redacted confession which
          incriminated the defendant through use of the term “the
          other man.”

       5. Whether Petitioner was deprived of the effective
          assistance of trial counsel when counsel failed to request
          a “Kloiber” instruction in connection with Samir Green’s
          eyewitness testimony.

       6. Whether Petitioner was deprived of the effective
          assistance of direct appeal counsel when counsel
          challenged the sufficiency of the evidence for a first
          degree murder conviction but failed to argue that the
          conviction was barred because the words allegedly said
          by Petitioner could equally mean an intent to injur, [sic]
          intent to intimidate, or an intent to kill, so that any
          conviction for intentional murder was speculative; and
          whether Petitioner was further deprived of effective
          direct appeal counsel when counsel failed to argue that
          the conviction of first degree murder violated the due
          process guarantee because the evidence of specific intent
          to kill was so lacking that no reasonable juror could find
          that element beyond a reasonable doubt.

       7. Whether Petitioner was deprived of the effective
          assistance of trial counsel when counsel did not object or
          did not properly object when the trial court permitted the
          prosecution to introduce the prior consistent statement
          of witnesses Samir Green and Kareem Terry when those

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            statements did not predate any corrupt motive or bias
            and were otherwise inadmissible as they improperly
            strengthened the witness testimony, and to the extent
            that counsel did not object, Petitioner was deprived of
            the effective assistance of direct appeal counsel when
            this issue was not raised on appeal.

         8. Whether Petitioner was deprived of the effective
            assistance of trial counsel when counsel failed to prepare
            the “prison” tapes in a way in which the jury could hear
            the audio, because this issue was crucial to the
            Petitioner’s defense that Kareem Terry was the shooter
            – who acted of his own decisiveness – and if the jury
            heard the tapes clearly, it would have been relevant to
            impeach Kareem Terry’s testimony.

Appellant’s Brief at 4-5.

      In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

the PCRA court and whether the ruling is free of legal error.” Commonwealth

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).
        This Court grant[s] great deference to the factual findings
        of the PCRA court and will not disturb those findings unless
        they have no support in the record. However, we afford no
        such deference to its legal conclusions. Where the petitioner
        raises questions of law, our standard of review is de novo
        and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Appellant’s first two issues can be addressed together.        “Appellant’s

claim that the PCRA court erred as a matter of law in permitting counsel to

withdraw,    although       necessarily   discussing   PCRA   counsel’s   alleged

ineffectiveness, is not an ineffectiveness claim.” Commonwealth v. Rykard,


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55 A.3d 1177, 1184 (Pa. Super. 2012) (citation omitted).          Determining

whether PCRA counsel and the PCRA court adhered to the mandates of

Turner/Finley is a question of law; therefore, our standard of review is de

novo and our scope of review is plenary. Id. at 1183-84.

       Appellant argues that he never received a copy of PCRA counsel’s “no

merit” letter and, therefore, the PCRA court erred in dismissing his petition

and allowing counsel to withdraw. Appellant raised this issue in his response

to the PCRA court’s Rule 907 Notice and requested permission to amend his

PCRA petition. Therefore, Appellant has preserved this issue for review. See

id. at 1186.

       Defendants have a general rule-based right to the assistance of counsel

for their first PCRA Petition.      Pa.R.Crim.P. 904(C); Commonwealth v.

Cherry, 155 A.3d 1080, 1082 (Pa. Super. 2017) (citation omitted).          In

addition, a defendant is entitled to “effective representation” on the part of

counsel who represents a PCRA petitioner. Finley, 550 A.2d at 215. Counsel

who petitions to withdraw from PCRA representation must proceed in

accordance with Turner, 544 A.2d 927 and Finley, 550 A.2d 213, and must

also   comply   with   additional    procedural   requirements.    See   also

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) (citation

omitted) (the additional procedural requirements that counsel must also send

to the petitioner: (1) a copy of the “no-merit” letter/brief; (2) a copy of

counsel's petition to withdraw; and (3) a statement advising petitioner of the




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right to proceed pro se or by new counsel are applicable during collateral

review).
           Counsel petitioning to withdraw from PCRA representation
           must proceed under . . . Turner . . . and Finley . . . and
           must review the case zealously. Turner/Finley counsel
           must then submit a “no-merit” letter to the trial court, or
           brief on appeal to this Court, detailing the nature and extent
           of counsel’s diligent review of the case, listing the issues
           which petitioner wants to have reviewed, explaining why
           and how those issues lack merit, and requesting permission
           to withdraw.

           Counsel must also send to the petitioner: (1) a copy of the
           “no merit” letter/brief; (2) a copy of counsel’s petition to
           withdraw; and (3) a statement advising petitioner of the
           right to proceed pro se or by new counsel.

           Where counsel submits a petition and no-merit letter that
           satisfy the technical demands of Turner/Finley, the court—
           trial court or this Court—must then conduct its own review
           of the merits of the case. If the court agrees with counsel
           that the claims are without merit, the court will permit
           counsel to withdraw and deny relief.

Commonwealth v. Muzzy, 141 A.3d 509, 510–11 (Pa. Super. 2016)

(internal citation omitted) (some formatting).
          If counsel fails to satisfy the foregoing technical
          prerequisites of Turner/Finley, the court will not reach the
          merits of the underlying claims but, rather, will merely deny
          counsel's request to withdraw. Upon doing so, the court will
          then take appropriate steps, such as directing counsel to file
          a proper Turner/ Finley request or an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (internal

citations omitted).

      Instantly, the record shows that counsel filed a Turner/Finley “no

merit” letter with the PCRA court. The letter stated, “I have informed Mr.



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Fleming that, in my opinion, there are no viable PCRA claims and that, in the

event his pro se petitions are dismissed pursuant to Finley, he will no longer

be eligible for court-appointed counsel, but could represent himself or retain

counsel.” “No merit” letter, at 1 (unpaginated). At the bottom of the “no

merit” letter, appears the following, “cc: DA’s Office, PCRA unit[,] Court of

Common Pleas PCRA Unit[,] Defendant Elijah Fleming[.]”                Id. at 5

(unpaginated). There is no certificate of service attached to counsel’s “no

merit” letter. Moreover, in his “no merit” letter, counsel does not state that

he is intending to send or has already sent a copy of the “no merit” letter to

Appellant.

       We find the record does not conclusively demonstrate that PCRA counsel

ever provided Appellant a copy of the “no-merit” letter.3 PCRA counsel did

not state in the “no merit” letter filed with the PCRA court that he had served

or was going to serve the “no merit” letter on Appellant, and the letter lacks

a certificate of service showing the letter was in fact served. While Appellant

was included on the “cc” line of the “no merit” letter, there is no indication of

the manner that the letter was sent or the address to which it was sent. We

note the Commonwealth, in its brief to this Court, stated it does not oppose

the PCRA court determining on remand whether defendant was provided an

opportunity to respond meaningfully to PCRA counsel’s “no merit” letter.
____________________________________________


3We note that counsel also did not file an application to withdraw with his “no
merit” letter, and, therefore, obviously did not comply with the directive to
serve a copy of the application to withdraw to Appellant as dictated in Muzzy.


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Commonwealth’s brief at 14. See Commonwealth v. Bush, 197 A.3d 285,

287-88 (Pa. Super. 2018) (PCRA counsel failed to comply with technical

requirements of Turner/Finley where “no merit” letter stated counsel

“intends to provide” appellant with copy of “no merit” letter and “will advise”

appellant of his right to proceed pro se or hire private counsel).

       In light of Attorney Yacoubian’s failure to satisfy the dictates of

Turner/Finley and Widgins, requiring counsel to serve a copy of the “no

merit” letter to Appellant, we find the PCRA court erred by permitting counsel

to withdraw.     Consequently, we vacate the PCRA court’s order dismissing

Appellant’s PCRA petition and remand with instructions that counsel file an

amended PCRA petition or refile a Turner/Finley “no merit” letter with the

PCRA court that fully complies with the mandates of Turner/Finley and

Widgins, including the direction to serve a copy of his “no merit” letter to

Appellant. If, upon receipt of PCRA counsel’s newly filed “no merit” letter or

amended PCRA petition, the PCRA court subsequently intends to deny relief

without a hearing, it must issue a notice pursuant to Pa.R.Crim.P. 907

explaining the reasons for its dismissal, and it must serve the notice upon

Appellant in accordance with Pa.R.Crim.P. 114.4

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4 Since we are vacating the PCRA court’s order based on Appellant’s first two
issues, we need not address his remaining issues. We note that the
Commonwealth, in its brief, requested that this Court remand to allow
Appellant the opportunity to respond to discovery related to Detective Nordo
that the Commonwealth sent to Appellant in August 2019. Nothing in this
opinion is intended to limit PCRA counsel from filing a petition to amend the
PCRA petition following remand.

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     Order vacated. Case remanded for further proceedings.   Jurisdiction

relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/20




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