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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHARLES JACOB BERGER
Appellant No. 1173 WDA 2015
Appeal from the PCRA Order July 7, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000898-2008
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*
JUDGMENT ORDER BY PANELLA, J.: FILED MAY 19, 2016
Appellant’s counsel, James Eugene DePasquale, Esquire, has filed a
brief in this matter in which he concedes that Appellant cannot satisfactorily
establish his claim of ineffective assistance of trial counsel. Attorney
DePasquale is currently in the rather odd position of arguing against his
client’s interests. This cannot stand.
Attorney DePasquale has not filed an “application for leave to withdraw
as counsel” pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d
927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988). In Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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2006), this Court clarified “the conditions precedent to an order of court
which terminates the representation of PCRA counsel[:]”
1) As part of an application to withdraw as counsel, PCRA
counsel must attach to the application a “no-merit” letter,
2) PCRA counsel must, in the “no-merit” letter, list each claim
the petitioner wishes to have reviewed, and detail the nature
and extent of counsel’s review of the merits of each of those
claims,
3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner’s issues are meritless,
4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
petitioner has the right to proceed pro se, or with the assistance
of privately retained counsel;
5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA
counsel to withdraw; and
6) the court must agree with counsel that the petition is
meritless.
If counsel wishes to file an application for leave to withdraw as
counsel, we advise counsel to file a no-merit letter which fully presents each
claim Berger wishes to pursue on appeal, including the appropriate
standards of review and legal authority in support of counsel’s contention
that these claims are without merit within 30 days; or, in the alternative,
counsel may file a proper brief on the merits. The Commonwealth shall
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thereafter have thirty days following the filing of Appellant’s brief in which to
file its response.
Case remanded with instructions. Panel jurisdiction retained.
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