J-S23037-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOEL G. MUIR, :
:
Appellant : No. 1970 EDA 2014
Appeal from the PCRA Order Entered May 22, 2014,
in the Court of Common Pleas of Montgomery County,
Criminal Division, at No(s): CP-46-CR-0001707-2004
BEFORE: DONOHUE, SHOGAN, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 29, 2015
Joel G. Muir (Appellant) appeals pro se from the order entered on June
24, 2014, denying his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we remand
this case to the PCRA court with instructions.
A prior panel of this Court summarized the facts underlying this case.
Around 2:00 a.m., on August 3, 2001, in the parking lot of
the Sunnybrook Ballroom, [A]ppellant, co-defendant Nicholas
Roberts, and two unidentified men, riding in a maroon Toyota
Camry, approached one Rian Wallace, who was standing in the
parking lot, and began yelling, “New York Crips.” The two
unidentified men exited the vehicle and began doing a gang
ritual dance around Wallace, purportedly alerting Wallace to the
fact they were members of the Crips street gang. Appellant then
also exited the car, and the three men surrounded Wallace.
Shortly thereafter, two of Wallace’s friends, the victim Michael
Ziegler and Brandon Germany, arrived at the scene. No violence
occurred during this confrontation.
*Retired Senior Judge assigned to the Superior Court.
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Wallace then left the scene with a friend, followed 30
minutes later by Ziegler, Germany, and two other men, driving a
gold Ford Taurus. After dropping off the other men at an
acquaintance’s house, Ziegler and Germany stopped briefly at a
motel party, and then drove to the home of a friend, Janae
Nixon. Ziegler parked on the street, and, according to
Germany’s testimony, [A]ppellant’s maroon Toyota Camry with
its lights turned out was also parked on that street. Co-
defendant Roberts was seated in the driver’s seat of the Camry,
[A]ppellant was in the passenger’s seat and two other individuals
were in the backseat. Appellant sped past the victim’s car, but
returned 10 minutes later, at about 3:00 a.m., minus the two
rear passengers. As the [A]ppellant’s car approached Nixon’s
home and the parked Taurus, Germany, Nixon and a second
woman, Shena Beasley were entering the Taurus. The victim
already was seated at the wheel. With Germany in the
passenger seat, the victim drove away, and [A]ppellant and
Roberts, the driver of the Camry, followed. As Roberts sped past
the Taurus, [A]ppellant, seated in the backseat, fired into the
victim’s vehicle, striking Ziegler in the head and killing him.
Commonwealth v. Muir, 909 A.2d 884 (Pa. Super. 2006) (unpublished
memorandum at 1-3).
Appellant absconded to New York and was apprehended three years
later. After a six-day trial, a jury found Appellant guilty of first-degree
murder, as well as lesser related offenses including conspiracy and
possession of a firearm without a license. On December 29, 2004, Appellant
was sentenced to two concurrent terms of life imprisonment for first-degree
murder and conspiracy to commit first-degree murder, and three
consecutive terms of seven to fourteen years of incarceration for the other
charges. A panel of this Court affirmed Appellant’s judgment of sentence on
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August 23, 2006. Muir, supra. After a series of procedural turns,1 our
Supreme Court denied Appellant’s petition for allowance of appeal on March
29, 2012. Commonwealth v. Muir, 42 A.3d 292 (Pa. 2012).
On December 18, 2012, Appellant filed timely a pro se PCRA petition.
Attorney Henry S. Hilles, III (Hilles) was appointed to represent Appellant.
On September 30, 2013, counsel filed a third amended PCRA petition, which
stated that this petition “fully replaces the first and second amended PCRA
petitions.” Third Amended PCRA Petition, 9/30/2013, at ¶ 14. Appellant set
forth one issue concerning trial counsel’s ineffective assistance with respect
to Appellant’s right to testify on his own behalf. Specifically, Appellant
argued that counsel misadvised Appellant that his prior non-crimen falsi
convictions would be admissible if he chose to testify. Appellant also argued
that trial counsel “refused” to permit Appellant to testify. Id. at ¶ 18.
An evidentiary hearing was held on January 22, 2014, and on May 22,
2014, the PCRA court denied Appellant’s request for PCRA relief. On June
23, 2014, Appellant filed timely a pro se notice of appeal.2 On June 23,
1
These procedural turns included Appellant being abandoned by counsel
causing the reinstatement of Appellant’s PCRA rights, followed by the grant
of Appellant’s PCRA petition which permitted him to file a petition for
allowance of appeal to our Supreme Court from this Court’s affirmance of
Appellant’s judgment of sentence.
2
Although Appellant’s notice of appeal was not docketed until June 26,
2014, we consider it as being filed on June 23, 2014, the date stamped on
the envelope, as Appellant is incarcerated. See Commonwealth v.
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2014, Hilles filed, with the PCRA court, a petition for leave to withdraw as
counsel and no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc).3 On July 2, 2014, the PCRA court permitted
counsel to withdraw. On July 18, 2014, Appellant filed “Objections” to the
PCRA court’s permitting of Hilles to withdraw, essentially claiming that Hilles
was ineffective for petitioning to withdraw as counsel at that juncture in the
proceedings. Both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
On appeal, Appellant sets forth numerous issues for our review;
however, for the reasons that follow, we cannot review those issues at this
time. Pennsylvania Rule of Criminal Procedure 910 provides that “[a]n order
granting, denying, dismissing, or otherwise finally disposing of a petition for
post-conviction collateral relief shall constitute a final order for purposes of
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (“[T]he prisoner mailbox rule
provides that a pro se prisoner’s document is deemed filed on the date he
delivers it to prison authorities for mailing.”). Since the PCRA court order
was filed on May 22, 2014, Appellant had until June 23, 2014 to file timely a
notice of appeal. Thus, the instant appeal was filed timely under the
prisoner mailbox rule.
3
In that letter, Hilles advised Appellant that the deadline to file a notice of
appeal was “today,” meaning, the day Hilles sent the letter to Appellant.
No-merit Letter, 6/23/2014, at 1. That letter also included a thorough
analysis of the one issue presented in Appellant’s PCRA petition, along with
six issues Appellant specifically asked Hilles to review. Hilles concluded that
none of these issues had merit warranting an appeal.
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appeal.” Moreover, “after an appeal is taken…, the trial court or other
government unit may no longer proceed further in the matter.” Pa.R.A.P.
1701(a).
Instantly, Appellant filed a notice of appeal on June 23, 2014.
However, the PCRA court permitted counsel to withdraw on July 2, 2014.
The PCRA court had lost jurisdiction over this matter prior to the entry of
this order. Accordingly, the proper place for counsel to file his petition to
withdraw and no-merit letter pursuant to Turner/Finley was with this
Court, not the PCRA court.
The Pennsylvania Rules of Criminal Procedure and our
caselaw make clear that an indigent petitioner is entitled to
representation by counsel for a first petition filed under the
PCRA. This right to representation exists throughout the post-
conviction proceedings, including any appeal from disposition of
the petition for post-conviction relief. It is equally clear that once
counsel has entered an appearance on a defendant’s behalf he is
obligated to continue representation until the case is concluded
or he is granted leave by the court to withdraw his appearance.
Commonwealth v. Willis, 29 A.3d 393, 401 (Pa. Super. 2011) (quoting
Commonwealth v. Quail, 729 A.2d 571, 573 (Pa. Super. 1999)).
Appellant is entitled to representation by counsel for this appeal.
Thus, we remand this case to the PCRA court for the appointment of new
counsel.4 Once new counsel’s appearance has been entered with this Court,
4
Out of an abundance of caution, we remand for the appointment of new
counsel, rather than the reinstatement of Attorney Hilles. Appellant has
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the Prothonotary is directed to issue a new briefing schedule. New counsel
may then file with this Court a petition to withdraw and no-merit letter
pursuant to Turner/Finley or an advocate’s brief.
Case remanded with instructions. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/2015
raised issues with respect to Attorney Hilles effectiveness, which new
counsel may need to consider.
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