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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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