J-S62015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WAYNE PRATER                               :
                                               :
                       Appellant               :   No. 1709 EDA 2017

                    Appeal from the PCRA Order May 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000374-2011,
              CP-51-CR-0000375-2011, CP-51-CR-0002465-2010,
              CP-51-CR-0008413-2010, CP-51-CR-0008416-2010,
                            CP-51-CR-0012511-2011


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 02, 2018

       Wayne Prater appeals pro se from the trial court’s order dismissing,

without a hearing, his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After careful review, we vacate and

remand for further proceedings.

       In June 2012, Prater was convicted of causing or risking a catastrophe,

burglary, aggravated assault, harassment, resisting arrest, stalking and

contempt. Prater’s convictions stemmed from a protracted series of harassing
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1 The standard of review of an order denying a PCRA petition is whether that
determination is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record. Commonwealth v. Johnston, 42 A.3d
1120, 1126 (Pa. Super. 2012).
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acts and violence directed towards his victim, Yvette Mason, Prater’s

estranged partner and the mother of his children.2 Prater was sentenced on

November 2, 2012, to 35½ to 71 years’ imprisonment.                   Prater filed an

unsuccessful post-sentence motion, but no direct appeal. On March 25, 2013

Prater filed a pro se PCRA petition and counsel was appointed. On April 12,

2013, the PCRA court reinstated Prater’s direct appeal rights nunc pro tunc.

On appeal, counsel was permitted to withdraw pursuant to Anders.3                 Our

Court    affirmed    Prater’s    judgment      of   sentence   on   April   7,   2014.

Commonwealth v. Prater, No. 1136 EDA 2013 (unpublished memorandum)

(Pa. Super. filed April 7, 2014).



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2  Mason obtained a protection from abuse (PFA) order against Prater in
September 2009. In November 2009, Prater made several harassing phone
calls to Mason, smashed her car windows, threw a brick through her home
window, and slashed her tires. In December 2009, witnesses observed Prater
near the rear of Mason’s home after discovering he had broken into her home,
plugged the bathtubs on the second floor, and started running the water in
the tubs, causing the water to overflow and pour from the ceiling below. N.T.
Trial, 6/26/12, at 51-57. In August 2010, Prater demanded money from
Mason and physically assaulted her. Later that month, someone called 911
claiming that Mason was going to kill herself with a bomb. On August 19,
2010, Mason returned home to find her house flooded again and also found a
pipe bomb in her basement. The bag containing the bomb’s fuse had Prater’s
fingerprints on it. The following day, the police arrested Prater and found him
in possession of the cellphone used to call 911 to inform the police that Mason
was going to kill herself with a bomb. N.T. Trial, 6/25/12, at 45-46.

3See Anders v. California, 386 U.S. 738 (1967); see also Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981).




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       On March 2, 2015, Prater filed the instant PCRA petition; counsel was

appointed and was permitted to withdraw, without filing an amended petition,

on June 9, 2016. On that same date, new counsel, Christopher J. Evarts,

Esquire, was appointed as PCRA counsel. On November 29, 2016, counsel

filed a Turner/Finley4 “no merit” letter seeking permission to withdraw and

stating that the issues raised by Prater in his petition were meritless and there

were no other issues of arguable merit that could be raised. The PCRA court

issued a Pa.R.Crim.P. 907 notice of its intention to dismiss Prater’s petition

without a hearing and informed him of his right to respond within 20 days.

Prater did respond to the Rule 907 notice; counsel requested further time to

review the matter and, ultimately, filed an amended Turner/Finley letter.

The court conducted an independent review and concluded that there were no

issues of merit that counsel could have raised in an amended PCRA petition

and granted counsel’s petition to withdraw without a hearing. On May 30,

2017, the court dismissed Prater’s petition.     Prater filed a timely notice of

appeal and court-ordered Pa.R.A.P 1925(b) concise statement of errors

complained of on appeal. This appeal follows.

       On appeal, Prater presents the following issues for our consideration:




____________________________________________


4 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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     (1) Was [Prater] denied review of a meritorious claim related to
     illegal sentence, where the judge considered aggravated
     circumstances/elements, which was not submitted to jury?

     (2) Was [Prater] denied a meaningful review of his PCRA claims
     of ineffective assistance of counsel when his court[-]appointed
     PCRA counsel and PCRA Court determined his claims to be void of
     merit, without a proper review of [Prater’s] issues as guaranteed
     by our Pa. Const. Art. 1 §9 and the 6th Amend. to our U.S. Const.?
     The following issues in reference to ineffective assistance counsel
     by Trial Counsel, Direct Appeal Counsel, and PCRA Counsel:

        a.)Trial Counsel[’s] omission at trial to address the mere
        presence at the scene of the crime, was insufficient to
        support a conviction and that no witness ever stated or
        identified [Prater] in property that was allegedly
        burglarized.

        b.)Trial Counsel not addressing the Pa.R.Crim.P. [] 600
        violation or adding it to filed post-sentence motion.

        c.) Trial Counsel only using stipulated statements of
        witnesses at trial, when all witnesses were ready and willing
        to come to court and testify, which denied [Prater] his
        constitutional rights under Pa. Const. Art. 1 §9 and U.S.
        Const. 6th Amend.

        d.) Trial Counsel not filing a suppression motion for violation
        of Pa.R.E[]. [] 403, because fingerprint on plastic bag was
        used to prejudice and confuse jury.

        e.) Trial Counsel not requesting Pro-Se filed sup[p]ression
        motion be litigated at trial or adding it to post-sentence
        motion.

        f.) Appella[te] Counsel[’s] misrepresentation of the facts in
        direct appeal in violation of Pa.R.Prof.Conduct [] 8.4 (A) to
        (I)).

        g.) Appella[te] Counsel not arguing/litigating [that an]
        illegal sentence [was] given by [the] trial judge in violation
        of State and Federal sentencing laws.

        h.) Appella[te] Counsel not addressing non-litigation of
        suppression motion or [Pa.R.Crim.P.] 600 violation in direct
        appeal brief, allowing [Prater’s] issue/rights to be waived.


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         i.) PCRA Counsel’s clear violation of Pa.R.Crim.P. [] 904 (A
         & E); Pennsylvania v. Finley, 481 U.S. 553 (1987) and
         Commonwealth v. Finley, 550 A.2d 213 ([Pa. Super.]
         1988), by not contacting [Prater] or answering his phone
         when called or returning any sent correspondence from
         [Prater].

         j.) PCRA Counsel's Finley/Turner letter, clearly did not give
         a[n] issue by issue breakdown of Pro-Se filed PCRA issues,
         making PCRA representation defective or uncounseled.
         PCRA Counsel defrauded [Prater] by issuing the same no
         merit letter after filed 907 response, calling it amended due
         too [sic] him adding three sentences, clearly showing his
         incompetence and ineffective assistance of counsel
         rendered.

         k.) PCRA Counsel in filed Finley letter never addressed the
         issue of no-litigation of suppression motion or Rule 600
         violation, this was clearly done to undermin[e]d the truth
         determining process, which becomes a major prejudice and
         a violation of [Prater’s] rights under the U.S. Const. 6th
         Amend. and Pa. Const. Art.1 §9.

      (3) Was [Prater] denied his constitutional right to a speedy trial
      pursuant to Pa.R.Crim.P. [] 600, as guaranteed by our Pa. Const.
      Art. 1 §9 and to our U.S. Const. 6th Amend.?

      (4) Did Judge Denis P. Cohen, abuse his discretion when he denied
      [Prater’s] Rule 600 Motion, when the Commonwealth failed to
      commence trial within 365 days, constituting a technical violation
      of Pa.R.Crim.P. [] 600?

Appellant’s Pro Se Brief, at 3-4.

      Before we address the merits of Prater’s appellate claims, we must first

address a procedural issue. On September 5, 2017, the trial court filed a Rule

1925(a) opinion noting that it had “conducted its own independent review of

the record and agreed that the Petition was meritless [after having] reviewed

the entire record[,] including the Anders brief filed by appellate counsel, the

Superior Court opinion, which concluded the direct appeal was wholly


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frivolous, and counsel’s amended Finley letter.” Trial Court Opinion, 9/5/17,

at 4.    A review of counsel’s amended Finley letter, filed March 28, 2017,

reveals that he only addresses three of Prater’s PCRA claims, illegal sentence,

trial/appellate counsels’ ineffectiveness, and failure to call Prater’s mother as

a witness. Counsel’s analysis of these claims is cursory at best; he spends

three of the three-and-a-half pages merely reciting the factual background of

the case and boilerplate PCRA law. On the other hand, Prater’s pro se PCRA

petition lists over eleven issues, all of which have been raised in his current

appeal.

        In Commonwealth v. Glover, 738 A.2d 460 (Pa. Super. 1999), our

Court held that a trial court erred in accepting PCRA counsel’s “no merit” letter,

in lieu of preparing an independent judicial opinion, where counsel’s

Turner/Finley letter did not “explain why each issue identified by Appellant

must be deemed meritless,” but rather “provided seven sentences addressing,

in an extremely cursory manner, a few of the issues identified by Appellant’s

pro se petition.” Id. at 464. As the Court in Glover recognized, “it would be

wholly inappropriate for the PCRA Judge to leave this Court in the position of

speculating on the basis of his ruling.” Id. at 466. Thus, on remand, our

Court directed that the PCRA write a full opinion in support of its order if the

ultimate decision is to deny relief to the defendant. Id.

        It is well-established that in order for counsel to secure a withdrawal

under Turner/Finley, he or she must prove that counsel’s independent review

consisted of:

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        (1)   A no-merit letter detailing the nature and extent of counsel’s
              review;

        (2)   Listing in the no-merit letter each issue the petitioner
              wishes to have reviewed; and

        (3)   An explanation by PCRA counsel of why petitioner’s issues
              are meritless.

Commonwealth v. Mosteller, 633 A.2d 615, 617 (Pa. Super. 1993)

(emphasis added). The PCRA court must then conduct its own independent

review of the record and agree with counsel that the petition is meritless. Id.

        Thus, a PCRA court’s duty to “independently review” the record is based

upon PCRA counsel’s initial review of the issues raised by the petitioner. See

id. (“In Turner, our supreme court endorsed an independent review by the

court of the record as a follow-up to counsel’s ‘no-merit’ letter.”). Here, where

counsel’s initial review falls woefully short of fulfilling his duty under

Turner/Finley, it was improper for the PCRA court to rely upon counsel’s

deficient “no-merit” letter to fulfill its duty under Rule 1925(a).5 Accordingly,

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5   Pennsylvania Rule of Appellate Procedure 1925(a) states:

        (a) Opinion in support of order.

           (1) General rule. --Except as otherwise prescribed by this
           rule, upon receipt of the notice of appeal, the judge who
           entered the order giving rise to the notice of appeal, if the
           reasons for the order do not already appear of record, shall
           forthwith file of record at least a brief opinion of the reasons
           for the order, or for the rulings or other errors complained
           of, or shall specify in writing the place in the record where
           such reasons may be found.

Pa.R.A.P. 1925(a).



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because counsel’s “no-merit” letter fails to comply with the Supreme Court’s

mandate in Turner, as explained by this Court in Finley, we must vacate the

PCRA court’s May 3, 2017 order dismissing Prater’s PCRA petition and

permitting counsel to withdraw.6

       Order vacated. Case remanded for further proceedings consistent with

this memorandum. Superior Court jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/18




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6 The trial court is directed to have counsel fully comply with the dictates of
Turner/Finley, including listing each issue Prater’s raised in his pro se PCRA
petition in his “no-merit” letter with a detailed explanation of why each issue
is meritless, if he seeks withdrawal upon remand. We also remind the trial
court of its duty to issue an independent judicial opinion, pursuant to Rule
1925(a), that explains the nature of and grounds for its conclusions when
ruling upon Prater’s petition seeking PCRA relief.

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