J-S04036-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

VERNON HALL,

                        Appellant                   No. 392 MDA 2014


               Appeal from the PCRA Order January 28, 2014
           In the Court of Common Pleas of Lackawanna County
           Criminal Division at No(s): CP-35-CR-0000752-2012,
                         CP-35-CR-0001776-2011


BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

CONCURRING STATEMENT BY BOWES, J.:                  FILED APRIL 10, 2015

     I join in the decision of my learned colleagues. I write further only to

address several key points in light of our remand.        First, Appellant is

proceeding pro se because PCRA counsel was permitted to withdraw under

Turner/Finley practice. Since, contrary to Appellant’s representation in his

brief, he did not raise a credit for time served complaint in his underlying

PCRA petition, and the record does not reveal the issue, I do not fault

counsel for not addressing the claim. See Commonwealth v. Rykard, 55

A.3d 1177, 1190 n.9 (Pa.Super. 2012).      Nonetheless, because Appellant’s

nonwaivable position may raise a question of fact that cannot be resolved by

the current record, he is entitled to counsel for purposes of any evidentiary




*Retired Senior Judge assigned to the Superior Court.
J-S04036-15



hearing.     See Pa.R.Crim.P. 904.      Of course, Appellant may elect to waive

that right after an appropriate colloquy.

         Finally, I voice my strong disapproval of the PCRA court’s intentional

disregard     of   Pa.R.Crim.P.   907    based   on   this   Court’s   decision   in

Commonwealth v. Bond, 630 A.2d 1281 (Pa.Super. 1993). Bond cannot

be read to eviscerate a criminal rule of procedure in Turner/Finley cases.

Pointedly, Bond is appropriately limited to the precise facts therein, and did

not hold that Rule 907 notice is not mandatory in Turner/Finley cases.

Moreover, in my view, Bond is no longer sound law in light of our Supreme

Court’s subsequent decision in Commonwealth v. Pitts, 981 A.2d 875 (Pa.

2009), which requires petitioners to file a response to a Rule 907 notice to

preserve issues of Turner/Finley counsel ineffectiveness. The failure of the

court to supply such a notice would preclude petitioners from complying with

Pitts.     Accordingly, I would urge the PCRA court to abide by the clear

mandate of Rule 907.

         With these additions in mind, I join the distinguished majority.




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