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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    TYRONE JEFFERSON                           :
                                               :
                       Appellant               :      No. 1497 EDA 2019

               Appeal from the PCRA Order Entered April 18, 2019
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008441-2012


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

MEMORANDUM BY KING, J.:                                   FILED JULY 24, 2020

        Appellant, Tyrone Jefferson, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We vacate and

remand for further proceedings.

        The relevant facts and procedural history of this case are as follows. On

September 16, 2013, a jury convicted Appellant of third-degree murder,

conspiracy, and possessing instruments of crime.           The court sentenced

Appellant on October 28, 2013, to an aggregate term of 25 to 54 years’

imprisonment.        This Court affirmed Appellant’s judgment of sentence on


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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August 18, 2015, and our Supreme Court denied allowance of appeal on

December 1, 2015.           See Commonwealth v. Jefferson, 131 A.3d 95

(Pa.Super. 2015) (unpublished memorandum), appeal denied, 633 Pa. 776,

126 A.3d 1283 (2015).

       On November 14, 2016, Appellant timely filed a pro se PCRA petition.

In his petition, Appellant alleged the trial court issued an erroneous jury

instruction, where the court informed the jury that if it did not unanimously

agree that Appellant was guilty of first-degree murder, then third-degree

murder would be the only proper verdict. Appellant also alleged prosecutorial

misconduct based on some of the District Attorney’s remarks during closing

arguments. Appellant further alleged, generally, that claims of a false jury

instruction, prosecutorial misconduct, and ineffective assistance of counsel

were matters Appellant intended to raise before the PCRA court.

       The court appointed PCRA counsel, who filed a Turner/Finley “no-

merit” letter2 and request to withdraw on October 5, 2017. In his “no-merit”

letter, counsel asserted that Appellant’s claim regarding the improper jury

instruction lacked merit and that Appellant’s claim of prosecutorial misconduct

was previously litigated on direct appeal. Counsel further said that Appellant’s

reference to the ineffective assistance of counsel was nothing more than a

boilerplate allegation that did not satisfy the criteria for ineffectiveness.


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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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      Nevertheless, the court found that PCRA counsel had failed to

communicate with Appellant prior to filing the Turner/Finley letter, so the

court deemed the letter insufficient and ordered counsel to amend it after

discussions with Appellant.

      Meanwhile, on December 22, 2017, Appellant filed a pro se response to

counsel’s Turner/Finley letter, asking PCRA counsel to file an amended

petition raising: (1) direct appeal counsel’s failure to raise on direct appeal the

court’s erroneous jury instruction; and (2) whether the trial court erred by

refusing to grant a mistrial due to the District Attorney’s allegedly improper

remarks during closing arguments.

      Counsel filed an amended PCRA petition on Appellant’s behalf on May

31, 2018.     Notably, the sole issue counsel included was trial counsel’s

ineffectiveness in failing to request a mistrial after the court overruled

counsel’s objection to the prosecutor’s allegedly improper remarks during

closing arguments.

      The court issued notice of its intent to dismiss the petition without a

hearing per Pa.R.Crim.P. 907, on September 28, 2018.                Although still

represented by counsel, Appellant filed a pro se response on November 20,

2018. Appellant claimed that he was unable to respond to the Rule 907 notice

within 20 days because he had not received the amended PCRA petition from

counsel. Consequently, Appellant asked the court to compel production of the




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amended PCRA petition.3

       On December 7, 2018, Appellant filed another pro se response to Rule

907 notice. In this filing, Appellant asked the court for permission to amend

his PCRA petition to raise additional issues and to clarify issues already raised.

Appellant maintained that he has had no communication with PCRA counsel

since October 5, 2017, when counsel filed the Turner/Finley letter.

       Appellant filed a third pro se response to Rule 907 notice on April 1,

2019, seeking to supplement some of his PCRA claims.4              In this filing,

Appellant expressly raised direct appeal counsel’s failure to argue on direct

appeal the issue concerning the allegedly erroneous jury instruction.

       The court denied PCRA relief on April 18, 2019. The order stated that

PCRA counsel shall remain appellate counsel if Appellant pursued an appeal,

unless Appellant chose to retain private counsel.       Appellant timely filed a

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3The certificate of service attached to counsel’s May 31, 2018 amended PCRA
petition confirms only that counsel served the amended petition on the
Philadelphia County District Attorney’s Office by e-filing. The certificate of
service does not indicate that counsel served Appellant with the amended
petition.

4  The record does not indicate whether the court forwarded any of Appellant’s
pro se filings to PCRA counsel, who was still counsel of record. See
Pa.R.Crim.P. 576(A)(4) (stating in any case in which defendant is represented
by attorney, if defendant submits written motion, notice or document that has
not been signed by defendant’s attorney, clerk of courts shall accept it for
filing and forward copy of time-stamped document to defendant’s attorney
and attorney for Commonwealth within 10 days of receipt). The PCRA court
took no action to address any of the complaints/requests raised in Appellant’s
pro se filings.



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counseled notice of appeal on May 17, 2019. On May 28, 2019, the court

ordered Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on June 17, 2019.5

       Appellant raises one issue for our review:

          Whether the court improperly influenced the jury’s
          prerogative by telling them if they could not agree on the
          charge of first-degree murder because of a difference in
          opinion then third-degree murder would obviously be the
          only proper verdict[?]

(Appellant’s Brief at 4).

       As a preliminary matter, Pennsylvania Rule of Criminal Procedure 904

provides, in pertinent part:

          Rule 904. Entry of Appearance and Appointment of
          Counsel; In Forma Pauperis

                                       *       *   *

              (C) Except as provided in paragraph (H), when an
          unrepresented defendant satisfies the judge that the
          defendant is unable to afford or otherwise procure counsel,
          the judge shall appoint counsel to represent the defendant
          on the defendant’s first petition for post-conviction collateral
          relief.

                                       *       *   *

              (F)    When counsel is appointed,

                                       *       *   *
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5 In his counseled Rule 1925(b) statement, Appellant reiterated his claim that
the court issued an erroneous jury instruction, but did not raise this issue in
the context of the ineffective assistance of direct appeal counsel. Appellant
also raised trial counsel’s ineffectiveness related to the underlying claim of
prosecutorial misconduct, as well as a sentencing issue.

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            (2) the appointment of counsel shall be effective
         throughout the post-conviction collateral proceedings,
         including any appeal from disposition of the petition for
         post-conviction collateral relief.

Pa.R.Crim.P. 904(C), (F)(2). This Court has stated:

         Pursuant to the rules of criminal procedure and interpretive
         case law, a criminal defendant has a right to representation
         of counsel for purposes of litigating a first PCRA petition
         through the entire appellate process. …

                                  *    *    *

         While the right to legal representation in the PCRA context
         is not constitutionally derived, the importance of that right
         cannot be diminished merely due to its rule-based
         derivation. In the post-conviction setting, the defendant
         normally is seeking redress for trial counsel’s errors and
         omissions. Given the current time constraints of 42 Pa.C.S.
         § 9545, a defendant’s first PCRA petition, where the rule-
         based right to counsel unconditionally attaches, may well be
         the defendant’s sole opportunity to seek redress for such
         errors and omissions. Without the input of an attorney,
         important rights and defenses may be forever lost.

Commonwealth v. Robinson, 970 A.2d 455, 457-59 (Pa.Super. 2009) (en

banc). See also Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161

(1999) (explaining indigent petitioner has right to appointment of counsel to

assist in prosecuting first PCRA petition; where that right has been effectively

denied by action of court or counsel, petitioner is entitled to remand to PCRA

court for appointment of counsel to prosecute PCRA petition; remand serves

to give petitioner benefit of competent counsel at each stage of post-

conviction review); Commonwealth v. Williams, 167 A.3d 1 (Pa.Super.

2017) (holding PCRA counsel effectively abandoned appellant after PCRA

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court’s issuance of Rule 907 notice; given significant rights at issue,

appellant’s claims of abandonment, and detailed and layered issues on appeal,

best resolution of case is to vacate and remand for filing of new, counseled

amended PCRA petition on appellant’s behalf and for further proceedings).

       Instantly, on November 14, 2016, Appellant timely filed his first PCRA

petition pro se. In his petition, Appellant alleged: (1) the jury instruction was

improper; and (2) the District Attorney committed prosecutorial misconduct.

Although Appellant mentioned the ineffective assistance of counsel, he did not

plead the required three prongs of that test.6               The court subsequently

appointed PCRA counsel, who filed a Turner/Finley letter, addressing the jury

instruction issue as a claim of trial court error (not in the context of

ineffectiveness) and concluding the prosecutorial misconduct claim was

previously litigated on direct appeal.

       In response, Appellant filed a pro se letter on December 22, 2017,

specifically arguing the jury instruction issue in the context of direct appeal

counsel’s failure to raise it on direct appeal; as well as reiterating his claim

about prosecutorial misconduct.            When counsel subsequently amended

Appellant’s PCRA petition on May 30, 2018, counsel omitted Appellant’s

principal complaint about direct appeal counsel’s ineffectiveness in relation to

the    jury   instruction   issue,   and       instead   argued   only   trial   counsel’s



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6   See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

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ineffectiveness with respect to the prosecutorial misconduct claim.

      Following the court’s entry of Rule 907 notice, Appellant filed three pro

se responses, in which Appellant complained: (1) he did not receive a copy of

counsel’s amended PCRA petition; (2) PCRA counsel effectively abandoned

him by failing to communicate with Appellant since the date on which counsel

filed the initial Turner/Finley letter; and (3) repeating his intent to raise,

inter alia, direct appeal counsel’s failure to challenge on direct appeal the

allegedly erroneous jury instruction. Neither PCRA counsel nor the PCRA court

responded to any of Appellant’s pro se filings.

      Significantly, the sole issue counsel raised for Appellant in the current

appeal is whether the trial court issued an erroneous jury instruction by

informing the jury that if it did not unanimously agree that Appellant was

guilty of first-degree murder, then third-degree murder would be the only

proper verdict. As the Commonwealth accurately points out, however, this

issue, as framed by counsel as one of trial court error, would ordinarily be

waived for purposes of the PCRA because it could have been raised on direct

appeal.   (See Commonwealth’s Brief at 6-8).           See also 42 Pa.C.S.A. §

9543(a)(3) (explaining that to be eligible for relief, petitioner must plead and

prove allegation of error has not been previously litigated or waived); 42

Pa.C.S.A. § 9544(b) (stating that for purposes of this subchapter, issue is

waived if petitioner could have raised it but failed to do so before trial, at trial,

during unitary review, on appeal or in prior state post-conviction proceeding).


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      Under these circumstances, however, the record discloses that PCRA

counsel effectively abandoned Appellant for, at least, the time period between

counsel’s filing of the amended PCRA petition, and counsel’s filing of the

current notice of appeal. The record confirms Appellant is indigent. Thus,

Appellant was entitled to appointment of counsel throughout all stages of

litigating his first PCRA petition. See Pa.R.Crim.P. 904(C), (F)(2); Kenney,

supra; Robinson, supra; Williams. Notwithstanding Appellant’s repeated

express request to raise a claim of direct appeal counsel’s failure to challenge

the allegedly erroneous jury instruction, counsel never advanced this issue on

Appellant’s behalf. Even if counsel thought such a claim was frivolous, he

could have filed another Turner/Finley letter explaining why.          Instead,

counsel’s only attempt to raise this claim on Appellant’s behalf was as trial

court error. As previously stated, by raising this claim as trial court error,

counsel advanced nothing more than a waived issue for purposes of the PCRA.

See 42 Pa.C.S.A. §§ 9543(a); 9544(b).

      Further, the record supports Appellant’s contention that he did not

receive a copy of counsel’s amended PCRA petition, as demonstrated in the

certificate of service, and that counsel failed to communicate with Appellant

since October 2017, as evidenced by the lack of any supplemental filings by

counsel following Appellant’s three pro se responses to Rule 907 notice.

      Given the significant rights at issue and Appellant’s valid claims of

abandonment, the best resolution of this case is to vacate and remand for the


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appointment of new PCRA counsel, who shall promptly communicate with

Appellant about the issues he wants to raise and file a new, amended PCRA

petition on Appellant’s behalf. See Kenney, supra (holding reviewing court

is error-correcting court and cannot evaluate claim that PCRA court did not

consider;7 Superior Court has no original jurisdiction in PCRA proceedings; if

record is insufficient to adjudicate allegations, case should be remanded for

further inquiry); Williams, supra. Accordingly, we vacate and remand for

further proceedings.

       Order vacated; case remanded with instructions.           Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/24/20

____________________________________________


7 Although the PCRA court considered Appellant’s claim that the trial court
issued an erroneous jury instruction, it did not evaluate that claim in the
context of direct appeal counsel’s ineffectiveness. “Our precedent has made
abundantly clear that a claim of ineffectiveness of counsel is distinct from the
underlying claim of trial court error.” Commonwealth v. Paddy, 609 Pa.
272, 303 n.11, 15 A.3d 431, 449 n. 11 (2011). See also Commonwealth
v. Collins, 585 Pa. 45, 888 A.2d 564 (2005) (holding Sixth Amendment claim
of ineffectiveness raises distinct legal ground for purposes of state PCRA
review and PCRA court should recognize ineffectiveness claims as distinct
issues and review them under three-prong ineffectiveness standard
announced in Pierce). Because PCRA counsel did not present Appellant’s
claim in the context of ineffectiveness before the PCRA court, the PCRA court
did not conduct the requisite analysis under Pierce.

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