Com. v. Banks, D.

J-S52038-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DEREK ADAM BANKS

Appellant No. 889 EDA 2014

Appeal from the PCRA Order February 25, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004267-2007;
CP-15-CR-0004269-2007; CP-15-CR-0004270-2007;
CP-15-CR-0004271-2007;CP-15-CR-0004272-2007

BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 06, 2015

Appellant, Derek Adam Banks, appeals pro se from the order entered

in the Chester County Court of Common Pleas, which denied and dismissed

his petition filed under 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.

In July 2007, a confidential informant (“C.I.”) assisted Embreeville State

Police with an investigation into Appellant’s drug related activities. During

the course of the investigation, the C.I. engaged in four controlled drug buys

____________________________________________

1
42 Pa.C.S.A. §§ 9541-9546.

_____________________________

*Former Justice specially assigned to the Superior Court.
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with Appellant. The first controlled buy took place on August 1, 2007, in

which Appellant sold the C.I. 4.1 grams of cocaine in exchange for three

hundred dollars ($300.00). On August 8, 2007, a second controlled buy

occurred in which Appellant sold the C.I. 14.2 grams of cocaine in exchange

for six hundred dollars ($600.00). A third controlled buy took place on

August 16, 2007, in which Appellant sold the C.I. 13.7 grams of cocaine in

exchange for six hundred dollars ($600.00). The fourth controlled buy

occurred on September 11, 2007, in which Appellant sold the C.I. 97.7

grams of cocaine in exchange for three thousand, six hundred dollars

($3,600.00). Immediately following the September 11, 2007 controlled buy,

police executed a search warrant on Appellant’s home and recovered, inter

alia, a digital scale with white residue, a large amount of cash, 14.2 grams

of cocaine, and drug paraphernalia.

Police arrested Appellant, and the Commonwealth charged him with

various drug-related crimes at five separate dockets.2 Specifically, the

Commonwealth charged Appellant with the following offenses: at docket no.

CP-15-CR-0004267-2007 (“docket 4267-2007”), delivery of a controlled

substance and criminal use of a communication facility, in connection with

the August 8, 2007 controlled buy; at docket no. CP-15-CR-0004269-2007

(“docket 4269-2007”), delivery of a controlled substance and criminal use of

____________________________________________

2
The court consolidated the cases on November 5, 2007.

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a communication facility, in connection with the August 1, 2007 controlled

buy; at docket no. CP-15-CR-0004270-2007 (“docket 4270-2007”), delivery

of a controlled substance and criminal use of a communication facility, in

connection with the September 11, 2007 controlled buy; at docket no. CP-

15-CR-0004271-2007 (“docket 4271-2007”), three counts of possession of a

controlled substance with the intent to deliver (“PWID”), and one count of

possession of drug paraphernalia, in connection with the September 11,

2007 search of Appellant’s residence; and at docket no. CP-15-CR-0004272-

2007 (“docket 4272-2007”), delivery of a controlled substance and criminal

use of a communication facility, in connection with the August 16, 2007

controlled buy.

Appellant proceeded to a jury trial on December 1, 2008. On

December 3, 2008, the jury convicted Appellant of one count of PWID, three

counts of delivery of a controlled substance, three counts of criminal use of a

communication facility, and one count of possession of drug paraphernalia.3

The court sentenced Appellant to an aggregate term of twenty-one (21) to

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3
The jury convicted Appellant on all counts, except for the two counts at
docket 4267-2007 (related to the August 8, 2007 controlled buy). The jury
was unable to reach a verdict as to the delivery of a controlled substance
charge at that docket; and found Appellant not guilty of the criminal use of a
communication facility charge at that docket. On March 5, 2009, the
Commonwealth asked the court to enter nolle prosequi on the delivery of a
controlled substance charge at docket 4267-2007.

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forty-six (46) years’ imprisonment on March 4, 2009.4 On March 18, 2009,

Appellant timely filed a notice of appeal, but this Court dismissed the appeal

on May 12, 2009, for failure to file a docketing statement.

On April 20, 2010, Appellant timely filed a pro se PCRA petition, and

the court appointed counsel the next day. Counsel filed an amended PCRA

petition on May 19, 2011, requesting a hearing to determine whether

appellate counsel failed to perfect Appellant’s direct appeal rights. On May

26, 2011, with agreement from the Commonwealth, the court reinstated

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4
Despite some references in the record that the court imposed a maximum
term of forty-two (42) years’ imprisonment, our review of the record
confirms the court imposed a maximum sentence of forty-six (46) years’
imprisonment. Specifically, at docket 4269-2007, the court sentenced
Appellant to 3-10 years’ imprisonment for the delivery of a controlled
substance conviction and 1-2 years’ imprisonment for the criminal use of a
communication facility conviction; at docket 4270-2007, the court sentenced
Appellant to 5-10 years’ imprisonment for the delivery of a controlled
substance conviction and 1-2 years’ imprisonment for the criminal use of a
communication facility conviction; at docket 4271-2007, the court sentenced
Appellant to 5-10 years’ imprisonment for the PWID conviction and imposed
no further penalty for the possession of drug paraphernalia conviction; and
at docket 4272-2007, the court sentenced Appellant to 5-10 years’
imprisonment for the delivery of a controlled substance conviction and 1-2
years’ imprisonment for the criminal use of a communication facility
conviction. The court imposed all sentences consecutively. Additionally, at
docket 4269-2007, the court imposed restitution in the amount of three
hundred dollars ($300.00) to be paid to the Commonwealth for money
expended during the August 1, 2007 controlled buy; at docket 4270-2007,
the court imposed restitution in the amount of three thousand, six hundred
dollars ($3,600.00) to be paid to the Commonwealth for money expended
during the September 11, 2007 controlled buy; and at docket 4272-2007,
the court imposed restitution in the amount of six hundred dollars ($600.00)
to be paid to the Commonwealth for money expended during the August 16,
2007 controlled buy.

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Appellant’s direct appeal rights nunc pro tunc.5 On June 20, 2011, Appellant

timely filed a nunc pro tunc notice of appeal. This Court affirmed Appellant’s

judgment of sentence on March 16, 2012, and our Supreme Court denied

allowance of appeal on September 4, 2012. See Commonwealth v.

Banks, 47 A.3d 1246 (Pa.Super. 2012), appeal denied, 616 Pa. 666, 51

A.3d 837 (2012).

Appellant timely filed a pro se PCRA petition on September 17, 2013.

The court appointed counsel (“PCRA counsel”) on October 3, 2013. On

December 30, 2013, PCRA counsel filed a petition to withdraw and a

Turner/Finley6 “no merit” letter. Appellant filed a pro se amended PCRA

petition on January 9, 2014, which the court declined to consider because

Appellant was still represented by PCRA counsel.7 On January 22, 2014, the

PCRA court determined Appellant had one meritorious issue concerning

eligibility for the Recidivism Risk Reduction Incentive (“RRRI”) program, so

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5
Appellant did not mention or request reinstatement of his post-sentence
rights nunc pro tunc in his amended petition.
6
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
7
The court relied on the general rule set forth in Commonwealth v. Ellis,
534 Pa. 176, 626 A.2d 1137 (1993), which held that there is no
constitutional right to hybrid representation at trial or on appeal; thus, this
Court will not review pro se briefs filed by represented appellants. (See
Rule 907 Notice Order and Opinion, filed January 22, 2014, at 3-4 n.5.) The
record is unclear whether the court forwarded Appellant’s January 9, 2014
pro se filing to PCRA counsel.

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the court modified Appellant’s sentence to include RRRI eligibility; 8 with

respect to Appellant’s remaining claims, the court issued Pa.R.Crim.P. 907

notice of intent to dismiss Appellant’s petition without a hearing. The court’s

Rule 907 notice order and opinion expressly gave Appellant twenty (20) days

to file a response. On January 27, 2014, Appellant filed a pro se response to

the court’s Rule 907 notice order and opinion. Notwithstanding the language

in the Rule 907 notice order and opinion, which allowed Appellant an

opportunity to respond, on February 7, 2014, the court dismissed Appellant’s

pro se response (because Appellant was still represented by PCRA counsel),

and directed the Clerk of Courts to forward a copy of the pro se filing to

PCRA counsel.9 On February 25, 2014, the PCRA court dismissed Appellant’s

petition and granted PCRA counsel’s request to withdraw. Appellant filed a

second pro se response to the court’s Rule 907 notice order and opinion; the

response was docketed on February 28, 2014, but dated February 18, 2014.

The PCRA court dismissed the response as moot on March 4, 2014, based on

the court’s earlier denial of PCRA relief.

Appellant timely filed a pro se notice of appeal on March 18, 2014, and
____________________________________________

8
The court asked PCRA counsel to calculate Appellant’s RRRI sentence, and
to submit a copy of Appellant’s RRRI sentence to the court within ten (10)
days. On February 18, 2014, the court entered an order stating Appellant’s
aggregate RRRI minimum sentence equals two hundred and twenty-seven
(227) months’ imprisonment.
9
In its February 7, 2014 order, the court again relied on Ellis, supra to
support dismissal of Appellant’s pro se filing.

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a voluntary concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). On April 15, 2014, the PCRA court filed its opinion per

Pa.R.A.P. 1925(a) asking this Court to quash or dismiss the appeal because

Appellant erroneously listed the order appealed from as dated March 15,

2014; the PCRA court contended no court action took place on March 15,

2014. Based on the PCRA court’s suggestion to quash or dismiss the appeal,

the court declined to review any of Appellant’s issues in its opinion but

indicated it would file a supplemental opinion if this Court so directed.

On August 19, 2014, this Court determined it was obvious from the

face of the record that Appellant meant to appeal the February 25, 2014

order denying PCRA relief, and Appellant’s reference to a March 15, 2014

order was merely an inadvertent error. Because Appellant filed his notice of

appeal within thirty days of the order denying PCRA relief, this Court

declined to quash Appellant’s appeal. Instead, this Court retained

jurisdiction and remanded the case to the PCRA court to issue a

supplemental opinion addressing all properly preserved issues raised in

Appellant’s Rule 1925(b) statement. The PCRA court subsequently issued its

supplemental opinion, simply directing this Court to review its earlier opinion

in support of Rule 907 notice order.10

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10
The court’s supplemental Rule 1925(a) opinion states: “The trial court
respectfully directs the appellate court to its January 22, 2014 ‘Notice of
Intent to Dismiss PCRA Petition Pursuant to Pa.R.Crim.P. 907(1)’ for the
(Footnote Continued Next Page)

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Appellant raises the following issues for our review:

WHETHER [THE] TRIAL COURT/TRIAL COUNSEL/AND THE
COMMONWEALTH [ERRED] BY FAILING TO CHARGE THREE
OTHERS INVOLVED IN THE MATTER[?]

WHETHER THE TRIAL COURT/COUNSEL FAILED TO MERGE
[APPELLANT’S] SENTENCE[?]

WHETHER [THE] TRIAL COURT/COUNSEL [ERRED] BY
FAILING TO RECOMMEND [APPELLANT] FOR RRRI[?11]

WAS [PCRA] COUNSEL INEFFECTIVE FOR FAILING TO
MAKE AN ATTEMPT TO COMMUNICATE OR REVIEW
[APPELLANT’S] ISSUES, SHOWING NO DILIGENCE WHILE
DISPLAYING INCOMPETENCE AND/OR AN ACT OF
FRAUD[?]

(Appellant’s Brief at 4).

For purposes of disposition, we combine Appellant’s issues. Appellant

argues the Commonwealth committed “prejudicial error” by failing to charge

the other individuals present at Appellant’s residence at the time of his

arrest. Appellant maintains the presence of others at the time of his arrest

casts doubt on whether Appellant was the person in possession of the drugs,

and the court denied him a fair trial by depriving the jury of this evidence.
_______________________
(Footnote Continued)

court’s reasoning herein. For the reasons set forth in that January 22, 2014
Notice, the trial court respectfully requests that its Order of February 25,
2014 dismissing [Appellant’s] Post Conviction Relief Act claims, subject to
the modification of sentence set forth in the court’s Order of February 18,
2014, be affirmed.” (Supplemental Rule 1925(a) Opinion, filed August 29,
2014, at 1) (internal footnote omitted).
11
Notwithstanding the phrasing of this question presented, Appellant
acknowledges that the court modified his sentence to include eligibility for
the RRRI program. Appellant now challenges the court’s RRRI calculation.

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Additionally, Appellant asserts the trial court abused its discretion when it

imposed consecutive sentences at all dockets. Appellant further contends

the court should have merged Appellant’s sentences for delivery of a

controlled substance, criminal use of a communication facility, and

possession of drug paraphernalia with Appellant’s PWID sentence, because

these convictions stemmed from one continuous criminal episode, and the

former crimes constitute lesser-included offenses of PWID.

Appellant also claims the court and PCRA counsel miscalculated

Appellant’s RRRI sentences as to the convictions on which the court imposed

a term of five (5) to ten (10) years’ imprisonment. As well, Appellant

complains the court failed to award Appellant credit for time served.

Further, Appellant maintains PCRA counsel was ineffective for failing to

communicate or review any of Appellant’s issues; and PCRA counsel violated

the Pennsylvania Rules of Professional Conduct because he did not make any

effort to keep Appellant informed of the status of his case. Appellant

concludes the court’s denial of Appellant’s PCRA petition was improper, and

this Court should grant appropriate relief. For the reasons that follow,

Appellant is entitled to some relief.

Preliminarily, we observe that our ability to reach the merits of

Appellant’s issues is severely impaired for the following reasons. First,

various documents necessary to our review are missing from the certified

record. The record does not contain Appellant’s pro se PCRA petition filed on

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September 17, 2013, or PCRA counsel’s Turner/Finley “no merit” letter

filed on December 30, 2013. Thus, we are unable to review Appellant’s

claim that PCRA counsel failed to address any of Appellant’s issues presented

in his pro se PCRA petition (as alleged on appeal), or to confirm whether

Appellant preserved his claims on appeal before the PCRA court.

Second, the record shows that the PCRA court did not consider in the

first instance most of Appellant’s current claims, and the PCRA court’s

opinion provides no help. In its supplemental Rule 1925(a) opinion, the

PCRA court merely directed us to its earlier Rule 907 notice order and

opinion, which does not address any of Appellant’s issues on appeal, with

the exception of Appellant’s merger claim.12 Significantly, our remand order

filed on August 19, 2014, instructed the PCRA court to issue an opinion as to

all of Appellant’s claims raised in his Rule 1925(b) statement, to the extent

they were properly preserved. Appellant raised all claims presented on

appeal in his Rule 1925(b) statement. (See Rule 1925(b) Statement, filed

March 18, 2014, at 1.)

Further, Appellant first complained of PCRA counsel’s ineffectiveness in

his January 27, 2014 pro se response to Rule 907 notice order and opinion,

alleging PCRA counsel failed to contact Appellant after his appointment, did

____________________________________________

12
The court’s Rule 907 notice order and opinion disposes of Appellant’s
merger claim as lacking merit in one paragraph, without citation to any legal
authority. (See Rule 907 Notice Order and Opinion at 13.)

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not address the issues Appellant wanted to pursue in counsel’s

Turner/Finley letter, and PCRA counsel’s failure to communicate with

Appellant violated the Pennsylvania Rules of Professional Conduct. The

court’s Rule 907 notice order and opinion, which naturally predated

Appellant’s pro se response, obviously could not have addressed these

complaints. Likewise, the court’s Rule 907 notice order and opinion could

not have addressed Appellant’s current challenge to his RRRI calculation,

because the court did not award Appellant RRRI eligibility until January 22,

2014 (the same date the court issued its Rule 907 notice order and opinion),

and did not calculate Appellant’s RRRI sentence until February 18, 2014.

Therefore, the court’s supplemental Rule 1925(a) opinion (directing us to the

court’s previous Rule 907 notice order and opinion) is plainly insufficient to

aid appellate review. See Commonwealth v. Dennis, 597 Pa. 159, 950

A.2d 945 (2008) (explaining PCRA court should provide legally robust

discussion, complete with clear findings of fact where required, to facilitate

appellate review; remanding for supplemental opinion sufficiently complete

to enable meaningful appellate review). See also Commonwealth v.

Kenney, 557 Pa. 195, 203, 732 A.2d 1161, 1165 (1999) (stating this Court

cannot evaluate claims that PCRA court did not consider; if record is

insufficient to adjudicate petitioner’s allegations, this Court should remand

for further inquiry).

Third, the PCRA court’s decision, not to review Appellant’s January 9,

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2014 pro se amended PCRA petition and January 27, 2014 pro se response

to the court’s Rule 907 notice order and opinion, was erroneous. The court

dismissed these petitions based on the general rule prohibiting hybrid

representation. See Ellis, supra. See also Pa.R.A.P. 3304 (stating:

“Where a litigant is represented by an attorney before the [c]ourt and the

litigant submits for filing a petition, motion, brief or any other type of

pleading in the matter, it shall not be docketed but forwarded to counsel of

record”). Nevertheless, PCRA counsel had filed a motion to withdraw and

Turner/Finley “no-merit” letter on December 30, 2013. Thus, the rule

against hybrid representation was no longer applicable. See generally

Commonwealth v. Ford, 44 A.3d 1190, 1198 n.4 (Pa.Super. 2012)

(stating: “When counsel files a Turner/Finley no-merit letter and counsel

has not yet been permitted to withdraw, the rule against hybrid

representation is inapplicable, as the petitioner can file a pro se

response”).13

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13
Notably, the court’s Rule 907 notice order and opinion specifically stated:
“The defendant may respond to this NOTICE within twenty (20) days of the
docketing of this Order. If the defendant has not responded, a subsequent
Order will be entered permitting [c]ourt [a]ppointed [c]ounsel to withdraw,
and dismissing the defendant’s PCRA petition. The subsequent Order shall
be a final appealable Order disposing of the defendant’s PCRA petition. If
the defendant responds to this NOTICE, the [c]ourt will: either dismiss
defendant’s PCRA petition; direct, if warranted, that [c]ourt [a]ppointed
[c]ounsel review defendant’s response; or, if warranted, direct that further
proceedings be held.” (Rule 907 Notice Order and Opinion at 2).

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Fourth, the record demonstrates Appellant has at least two meritorious

issues regarding (1) the court’s calculation of Appellant’s RRRI minimum

sentence;14 and (2) the restitution portion of Appellant’s sentence. See

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (stating this

Court can raise sua sponte issues concerning legality of sentence).

The relevant version of the RRRI statute at the time of Appellant’s

sentencing provided, in pertinent part, as follows:

§ 5305. Sentencing

(a) Generally.―At the time of sentencing, the court
shall make a determination whether the defendant is an
eligible offender.

* * *

(c) Recidivism risk reduction incentive minimum
sentence.―If the court determines that the defendant is
an eligible offender or the prosecuting attorney has waived
the eligibility requirements under subsection (b), the court
shall enter a sentencing order that does all of the
following:

(1) Imposes the minimum and maximum
sentences as required by 42 Pa.C.S. § 9752 (relating
to sentencing proceeding generally).

(2) Imposes the recidivism risk reduction
incentive minimum sentence. The recidivism risk
reduction incentive minimum sentence shall be equal
to three-fourths of the minimum sentence imposed
when the minimum sentence is three years or less.
The recidivism risk reduction incentive minimum
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14
The RRRI calculation issue we address differs from Appellant’s specific
RRRI complaint on appeal but still implicates the legality of the sentence.

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shall be equal to five-sixths of the minimum
sentence if the minimum sentence is greater than
three years. …

* * *

61 Pa.C.S.A. § 5305.15

Here, the PCRA court granted limited PCRA relief on January 22, 2014

to make Appellant RRRI-eligible. On February 18, 2014, the court calculated

Appellant’s aggregate RRRI minimum sentence as two hundred and twenty-

seven (227) months. In calculating the RRRI breakdown for each of

Appellant’s sentences, however, the court erroneously listed Appellant’s

delivery of a controlled substance sentence at docket 4269-2007 as five (5)

to ten (10) years’ imprisonment, which would call for a fifty (50) month

RRRI minimum sentence. (See Order, dated February 18, 2014, at 1.) See

also 61 Pa.C.S.A. § 5305(c)(2). Nevertheless, the record makes clear the

court sentenced Appellant at docket 4269-2007 to three (3) to ten (10)

years’ imprisonment for his delivery of a controlled substance conviction.

(See N.T. Sentencing, 3/4/09, at 19; Sentencing Order for docket 4269-

2007, 3/4/09, at 1.) As a result, the applicable RRRI minimum sentence for

this conviction is actually twenty (27) months’ imprisonment, not fifty (50)

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15
The legislature repealed this version of the RRRI statute on October 9,
2009 (effective October 13, 2009). On August 11, 2009 (effective October
13, 2009), the legislature re-codified the RRRI statute at 61 Pa.C.S.A. §
4505. Section 4505 contains the same calculation language set forth in
Section 5305 (repealed). See 61 Pa.C.S.A. § 4505(c).

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months’ imprisonment. See 61 Pa.C.S.A. § 5305(c)(2). Therefore,

Appellant’s total RRRI minimum sentence should equal two hundred and four

(204) months’ imprisonment, not two hundred and twenty-seven (227)

months.

Regarding the restitution portion of Appellant’s sentence, Section 1106

of the Crimes Code governs orders of restitution, in pertinent part, as

follows:

§ 1106. Restitution for injuries to person or property

(a) General rule.—Upon conviction for any crime
wherein property has been stolen, converted or otherwise
unlawfully obtained, or its value substantially decreased as
a direct result of the crime, or wherein the victim suffered
personal injury directly resulting from the crime, the
offender shall be sentenced to make restitution in addition
to the punishment prescribed therefor.

18 Pa.C.S.A § 1106(a). The statute refers to the Crime Victims Act for the

definition of “victim” for purposes of Section 1106.16 See 18 Pa.C.S.A. §

1106(h). The Crime Victims Act defines “victim” as:

(1) A direct victim.

(2) A parent or legal guardian of a child who is a direct
victim, except when the parent or legal guardian of the
child is the alleged offender.

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16
Section 1106(h) relies on the definition of “victim” set forth in Section
479.1 of the Act of April 9, 1929 (P.L. 177, No. 175), known as the
Administrative Code of 1929 (repealed; now codified at 18 Pa.C.S.A. §
11.101 et seq., known as the “Crime Victims Act”).

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(3) A minor child who is a material witness to any of the
following crimes and offenses under 18 Pa.C.S. (relating to
crimes and offenses) committed or attempted against a
member of the child’s family:

Chapter 25 (relating to criminal homicide).

Section 2702 (relating to aggravated assault).

Section 3121 (relating to rape).

(4) A family member of a homicide victim including
stepbrothers or stepsisters, stepchildren, stepparents or a
fiancé, one of whom is to be identified to receive
communication as provided for in this act, except where
the family member is the alleged offender.

18 Pa.C.S.A. § 11.103.

Importantly, “the Commonwealth…does not qualify as a victim as that

term is defined in [Section] 1106.” Commonwealth v. Boyd, 835 A.2d

812, 819 (Pa.Super. 2003). Thus, the Commonwealth cannot recover as

restitution from a defendant “buy money” used in a controlled drug

transaction. See id. (holding Commonwealth is not “victim” as defined in

Section 1106, so Commonwealth cannot recover as restitution any buy

money defendant obtained as result of controlled buy; vacating portion of

sentence ordering defendant to pay “restitution” for buy money to

Commonwealth).

Nevertheless, “[i]n any case where a defendant is convicted and

sentenced to pay the costs of prosecution and trial, the expenses of the

district attorney in connection with such prosecution shall be considered a

part of the costs of the case and be paid by the defendant.” 16 Pa.C.S.A. §

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1403. This Court has stated:

In that the district attorney is the chief law enforcement
officer of a county, …when a drug buy is arranged by police
officers, these officers are proceeding in accordance with
general directives from the district attorney of that county.
Consequently, we find that buy money expended by
officers in furtherance of their investigation and
apprehension of persons suspected of crime are reasonable
costs of prosecution within the purview of § 1403, if such
funds are not recovered by drug enforcement officers prior
to the time of sentencing.

Commonwealth v. Smith, 901 A.2d 1030, 1032-33 (Pa.Super. 2006),

appeal denied, 590 Pa. 667, 912 A.2d 837 (2006). Therefore, buy money

used in a controlled drug transaction cannot be recovered under a restitution

order, but it can be recovered as a reasonable cost of prosecution. Id.

Here, the court imposed restitution at dockets 4269-2007 ($300.00),

4270-2007 ($3,600.00), and 4272-2007 ($600.00), to recoup the buy

money used in the August 1, 2007, August 16, 2007, and September 11,

2007 controlled buys. The court’s imposition of restitution to recover the

buy money was improper, however, because the Commonwealth does not

qualify as a “victim” under Section 1106 and cannot recover buy money

through a restitution order. See 18 Pa.C.S.A. § 11.103; Boyd, supra.

Based on the missing documents in the certified record, the PCRA

court’s failure to address most of Appellant’s issues and improper dismissal

of Appellant’s January 9, 2014 and January 27, 2014 pro se filings (docketed

after PCRA counsel had moved to withdraw), the inadequate supplemental

Rule 1925(a) opinion, and the existence of at least two meritorious

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sentencing issues, the best resolution of this case is to vacate and remand

for further proceedings. See Kenney, supra. Upon remand, the PCRA

court must (1) correct Appellant’s RRRI calculation; (2) re-characterize the

restitution provisions of Appellant’s sentence concerning the “buy money” as

reasonable costs of prosecution;17 (3) appoint new counsel to assist

Appellant in filing an amended PCRA petition raising all non-frivolous issues

Appellant wants to pursue; if appointed counsel concludes no non-frivolous

issues exist, counsel may file a Turner/Finley “no-merit” letter identifying

why Appellant’s claims are frivolous and otherwise complying with the

dictates of Turner and Finley; and (4) complete the certified record so it

contains all relevant documents necessary to dispose of Appellant’s claims,

including Appellant’s September 17, 2013 PCRA petition and PCRA counsel’s

December 30, 2013 Turner/Finley “no-merit” letter.18 Accordingly, we

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17
If the Commonwealth recovered the $3,600.00 used in the September 11,
2007 controlled buy upon execution of the search warrant at Appellant’s
residence that day, it cannot recover those funds again as costs of
prosecution. See Smith, supra.
18
On March 6, 2015, Appellant filed a pro se petition for relief in this Court,
alleging the court imposed mandatory minimum sentences under 18
Pa.C.S.A. § 7508 (relating to imposition of mandatory minimum sentences
based on weight of drugs), which Appellant contends is now
unconstitutional. See Alleyne v. United States, ___ U.S. ___, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013) (holding any fact increasing mandatory
minimum sentence for crime is considered element of crime to be submitted
to fact-finder and found beyond reasonable doubt); Commonwealth v.
Newman, 99 A.3d 86, 98 (Pa.Super. 2014) (en banc) (analyzing
constitutionality of 18 Pa.C.S.A. § 9712.1 (which contains language similar
(Footnote Continued Next Page)

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vacate and remand for further proceedings.

Order vacated; case remanded with instructions. Jurisdiction is

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2015

_______________________
(Footnote Continued)

to Section 7508) and holding that Section 9712.1 can no longer pass
constitutional muster under Alleyne as it permits trial court, as opposed to
jury, to increase defendant’s minimum sentence based upon preponderance
of evidence that defendant was dealing drugs and possessed firearm, or that
firearm was in close proximity to drugs). Nevertheless, this Court made
clear in Newman that Alleyne is subject to limited retroactivity; in other
words, Alleyne is applicable only to criminal cases still pending on direct
review. Id. at 90. Here, the court sentenced Appellant on March 4, 2009,
and our Supreme Court denied allowance of appeal on September 4, 2012.
Appellant’s judgment of sentence became final on December 3, 2012, upon
expiration of the time to file a petition for writ of certiorari with the United
States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.
The Supreme Court decided Alleyne on June 17, 2013. Thus, Appellant’s
judgment of sentence was already final before Alleyne was decided.
Accordingly, Appellant is not entitled to retroactive application of Alleyne,
and we deny Appellant’s pro se petition for relief.

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