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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDWARD WILLIAM PETTERSEN, JR.
Appellant No. 526 EDA 2014
Appeal from the PCRA Order January 28, 2014
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000425-2009
BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*
DISSENTING STATEMENT BY MUNDY, J.: FILED JUNE 27, 2016
I respectfully dissent from the learned Majority’s decision to vacate
and remand for appointment of new counsel. Although I agree that the
PCRA court took “mutually exclusive positions” to a certain degree, it does
not follow that the PCRA court violated Appellant’s rule-based right to
counsel. Majority Memorandum at 4.
“[A] criminal defendant has a right to representation of counsel for
purposes of litigating a first PCRA petition through the entire appellate
process.” Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super.
2009) (en banc); accord Pa.R.Crim.P. 904(C). As the Majority points out,
under Rule 908(C), whenever the PCRA court convenes an evidentiary
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*
Retired Senior Judge assigned to the Superior Court.
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hearing, the PCRA court “shall provide the defendant an opportunity to have
counsel.” Pa.R.Crim.P. 908(C); see also generally Majority Memorandum
at 4. However, this Court has recognized that there are limits on this rule-
based right.
[W]hen counsel has been appointed to represent a
petitioner in [PCRA] proceedings as a matter of right
under [Rule 904(C)] and when that right has been
fully vindicated by counsel being permitted to
withdraw under the procedure authorized in
Turner[/Finley], new counsel shall not be appointed
and the petitioner, or appellant, must thereafter look
to his or her own resources for whatever further
proceedings there might be.
Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote
omitted); accord Commonwealth v. Rykard, 55 A.3d 1177, 1183 n.1 (Pa.
Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).1
As noted above, PCRA counsel was appointed as required by Rule
904(C). Subsequently, PCRA counsel was permitted to withdraw from
representation pursuant to the procedures outlined in Turner/Finley.
Appellant did not challenge that order. Once that order became final, the
PCRA court was not permitted to appoint a second PCRA counsel for
Appellant. See id.
I am aware of one order from our Supreme Court in Commonwealth
v. Torres, 101 A.3d 781 (Pa. 2014) (per curiam) which involved a similar
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1
Our Supreme Court has cited to Maple’s proposition with approval.
Commonwealth v. Jette, 23 A.3d 1032, 1042 (Pa. 2011).
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posture. There, the petitioner was appointed counsel for his first PCRA
petition, counsel was permitted to withdraw under Turner/Finley, and the
PCRA court issued its Rule 907 notice. Id. at 781. In response, the
petitioner “filed a pro se pleading styled as an amended PCRA petition,
raising two new claims[.]” Id. The PCRA court granted the petitioner an
evidentiary hearing on his new claims, and he requested appointment of
counsel for the hearing, which the PCRA court denied on the grounds that
prior counsel had already been permitted to withdraw. Id. Our Supreme
Court concluded that once the PCRA court accepted the petitioner’s amended
petition and granted an evidentiary hearing on same, the PCRA court was
required to appoint counsel. Id.
I conclude Torres does not alter the proper resolution of this case for
two reasons. First, Torres was a per curiam order entered by our Supreme
Court on its allocatur docket. It is axiomatic that such “per curiam orders
have no stare decisis effect.” Commonwealth v. Thompson, 985 A.2d
928, 937 (Pa. 2009) (citation omitted). As such, Torres is not binding on
this panel. More critically, in this case, I have reviewed Appellant’s pro se
response to the PCRA court’s Rule 907 notice, and Appellant did not raise
any new claims, thus rendering this case factually and legally distinguishable
from Torres, and the Majority does not dispute this important distinction.
Majority Memorandum at 2.
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Based on the foregoing, I conclude that Appellant was not entitled to
new counsel once the PCRA court convened its hearing on Appellant’s
response to its Rule 907 notice. I have also reviewed Appellant’s remaining
claims on appeal and conclude that they do not warrant relief. Accordingly,
I would affirm the PCRA court’s January 28, 2014 order. I respectfully
dissent.
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