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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ARIEL COLON, JR., : No. 422 MDA 2017
:
Appellant :
Appeal from the PCRA Order, February 2, 2017,
in the Court of Common Pleas of Schuylkill County
Criminal Division at No. CP-54-CR-0001391-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 05, 2017
Ariel Colon, Jr. appeals from the February 2, 2017 order denying his
petition filed pursuant to the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this appeal, Jeffrey M.
Markosky, Esq. (“PCRA counsel”), has requested leave to withdraw in
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). For
the reasons that follow, we deny PCRA counsel’s request to withdraw and
remand this matter so that PCRA counsel may take appropriate action in
accordance with our decision.
Appellant was found guilty of aggravated assault, recklessly
endangering another person, and simple assault1 and sentenced to an
1 18 Pa.C.S.A. §§ 2702, 2705, and 2701, respectively.
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aggregate term of 9 to 20 years’ imprisonment on March 19, 2015. On
November 20, 2015, a panel of this court affirmed appellant’s judgment of
sentence, and appellant did not seek allowance of appeal with our supreme
court. See Commonwealth v. Colon, 134 A.3d 500 (Pa.Super. 2015). On
June 27, 2016, appellant filed a pro se PCRA petition alleging the
ineffectiveness of his trial counsel, and PCRA counsel was appointed to
represent him. PCRA counsel filed an amended PCRA petition on appellant’s
behalf on December 15, 2016, and an evidentiary hearing was held on
January 19, 2017. Following the hearing, the PCRA court entered an order
on February 2, 2017 denying appellant’s petition. This timely appeal
followed. Thereafter, on April 6, 2017, PCRA counsel subsequently filed a
“no-merit” letter and a petition to withdraw. Appellant did not file a pro se
response to PCRA counsel’s petition.
Preliminarily, we must address PCRA counsel’s request to withdraw
from representation. Upon review, we find that PCRA counsel’s filing with
this court, while couched as a brief pursuant to Anders v. California, 386
U.S. 738 (1967), satisfied the technical requirements of Turner/Finley.2
However, our review of the docket indicates that although PCRA counsel
2See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004) (holding that although “[a] Turner/Finley no merit letter is the
appropriate filing [in a PCRA proceeding,] . . . because an Anders brief
provides greater protection to the defendant, we may accept an Anders
brief in lieu of a Turner/Finley letter”), appeal denied, 882 A.2d 477 (Pa.
2005).
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requested transcripts of the proceedings when he filed a notice of appeal,
the notes of testimony from the January 19, 2017 PCRA hearing were never
transcribed. In Commonwealth v. Flowers, 113 A.3d 1246 (Pa.Super.
2015), a panel of this court addressed whether an appointed counsel who
sought to withdraw under Anders failed to fulfill his duty to search the
record for any non-frivolous issues, where some of the transcripts were
missing from the record. Id. at 1249-1250. The Flowers court denied
appointed counsel’s petition to withdraw and remanded, noting that
Pennsylvania law makes clear neither counsel nor this court can satisfy
Anders if counsel fails to supply this court with a complete record. Id. at
1250 (reasoning that, “[w]ithout these notes of testimony, Counsel could not
have fulfilled his duty to review the entire record for any non-frivolous
issues.” (citations omitted)). Similarly, in the instant matter, we cannot
conclude that PCRA counsel has fulfilled his obligations pursuant to
Turner/Finley. Accordingly, we deny PCRA counsel’s petition to withdraw
and remand this matter with instructions for PCRA counsel to obtain the
notes of testimony from the January 19, 2017 hearing and to file an
advocate’s brief or another Turner/Finley “no-merit” letter and petition to
withdraw, following a review of the complete record.
Petition for leave to withdraw as counsel denied. Case remanded.
Panel jurisdiction retained.
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