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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEOFFREY HETHERINGTON :
:
Appellant : No. 1482 WDA 2015
Appeal from the PCRA Order August 7, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004009-2013,
CP-65-CR-0004012-2013
BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS*, P.J.E.
JUDGMENT ORDER BY STEVENS, P.J.E.: FILED JANUARY 25, 2017
Geoffrey Hetherington (“Appellant”) appeals from the order entered in
the Court of Common Pleas of Westmoreland County denying his first Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, petition without
a hearing and granting PCRA counsel’s petition to withdraw as counsel
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). He argues that
the PCRA court erroneously accepted PCRA counsel’s Turner/Finley letter
and dismissed his petition when counsel’s letter failed to list and address
Appellant’s pro se claim that trial counsel ineffectively denied him his right to
testify. We vacate and remand.
*Former Justice specially assigned to the Superior Court.
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It is well-settled that a PCRA petitioner is not automatically entitled to
an evidentiary hearing, and this Court will review the PCRA court's decision
to dismiss a petition without a hearing for an abuse of discretion.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014). A
reviewing court will examine each issue raised in a PCRA petition in light of
the record certified before it to determine if the PCRA court erred in finding
that there were no genuine issues of material fact in controversy and in
denying relief without conducting an evidentiary hearing. Id.
In its Pa.R.A.P. 1925(a) opinion, the PCRA court concedes that it erred
when it accepted counsel’s Turner/Finley letter and dismissed Appellant’s
petition when the letter failed to address all issues raised in the pro se PCRA
petition. The Commonwealth responds that Appellant effectively waived his
claim by filing serial PCRA appeals both before and after the time he
received the PCRA court’s Rule 907 notice of dismissal, thus “precluding” the
court’s ability to review his claims.1 The record shows that Appellant filed no
pro se response to the PCRA court’s Rule 907 notice.
____________________________________________
1
On August 7, 2015, the PCRA court entered its Rule 907 notice of intent to
dismiss and advised Appellant of his opportunity to respond within 20 days.
27 days later, on September 3, 2015, Appellant filed a pro se notice of
appeal to this Court. The PCRA court entered its final order dismissing
Appellant’s pro se petition on September 15, 2015. We decline to accept the
proposition that Appellant prevented the court from properly reviewing the
record prior to issuing Rule 907 notice and entering its final order.
Additionally although Appellant's notice of appeal was premature when filed,
we will regard this appeal as timely. See Pa.R.A.P. 905(a)(5) (“A notice of
(Footnote Continued Next Page)
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Pursuant to Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), a
defendant waives only a challenge to PCRA counsel's effective assistance of
counsel by failing to raise such a claim in a timely response to a Rule 907
notice of intent to dismiss. As stated, however, Appellant’s present
challenge goes not to PCRA counsel’s stewardship but, instead, to the PCRA
court’s act of dismissing his petition without having reviewed every claim it
alleged.
Accepting PCRA counsel's Turner/Finley letter when it failed to list
and address all of the issues raised in Appellant’s pro se petition was judicial
error. See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super.
2007) (providing counsel must, among other requirements, list “the issues
which the petitioner wants to have reviewed, explaining why and how those
issues lack merit ... If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel's request to
withdraw”). The PCRA court should have, instead, denied PCRA counsel's
petition to withdraw and ordered him to file either an amended PCRA
petition or a compliant Turner/Finley letter.
_______________________
(Footnote Continued)
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”); see also Commonwealth v. Swartzfager, 59 A.3d 616,
618 n.3 (Pa. Super. 2012) (accepting premature notice of appeal filed after
entry of Rule 907 Notice but before final order dismissing PCRA petition).
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Therefore, we concur with the PCRA court’s recommendation that we
remand this matter for further review. Accordingly, we vacate the order
dismissing Appellant's PCRA petition and remand for the appointment of new
PCRA counsel, who shall review the record and file either an amended
petition or a compliant Turner/Finley letter addressing all issues originally
raised in Appellant’s pro se PCRA petition.
Order vacated and case remanded for further proceedings consistent
with this order. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
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Com. v. Hetherington, G.
Combined Opinion