J-S47036-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MCKINLEY WILLIAM BERRY, :
:
Appellant : No. 170 WDA 2018
Appeal from the PCRA Order January 19, 2018
in the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0000288-2016
BEFORE: OLSON, MCLAUGHLIN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 5, 2018
McKinley William Berry (Appellant) appeals pro se from the January 19,
2018 order denying his petition filed pursuant to the Post Conviction Relief
Act, 42 Pa.C.S. §§ 9541-9546. Upon review, we vacate the order and remand
for proceedings consistent with this memorandum.
Appellant and his co-conspirators “were attempting to rob drug dealers
and the drug dealers killed one of the co-conspirators” during this altercation.
N.T., 1/24/2017, at 3. Although Appellant himself did not kill anyone, he was
charged with, inter alia, second-degree murder because someone died during
his perpetrating a felony. See 18 Pa.C.S. § 2502(b) (“A criminal homicide
constitutes murder of the second degree when it is committed while defendant
was engaged as a principal or an accomplice in the perpetration of a felony.”).
* Retired Senior Judge assigned to the Superior Court.
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However, due to these somewhat unusual facts, and conflicting case
law as to whether Appellant could be prosecuted for second-degree murder,
the Commonwealth offered a plea agreement to Appellant. That agreement
would dismiss all other charges and permit Appellant to plead guilty to
“burglary, robbery, and criminal conspiracy to commit aggravated assault.”
N.T., 1/24/2017, at 3-4. In addition, the Commonwealth and Appellant
agreed to a sentence of five to ten years of incarceration for burglary, a
consecutive three-and-a-half to seven years of incarceration for robbery, and
a concurrent five to ten years of incarceration for criminal conspiracy. The
trial court accepted the plea agreement and scheduled sentencing for March
2, 2017. The trial court imposed the agreed-upon sentence that day.
On May 26, 2017, Appellant filed pro se a post-sentence motion. The
trial court denied that motion, and Appellant timely filed pro se a notice of
appeal. Appellant filed a request with this Court to withdraw that appeal, and
on July 19, 2017, this Court discontinued the appeal. On July 20, 2017,
Appellant pro se filed a PCRA petition. On July 25, 2017, the PCRA court, not
realizing the prior appeal was discontinued, dismissed Appellant’s PCRA
petition without prejudice.
On October 20, 2017, Appellant filed pro se another PCRA petition.
Counsel was appointed, and she filed a petition to withdraw 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). On
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December 20, 2017, the PCRA court entered an order pursuant to Pa.R.Crim.P.
907 (Rule 907 notice), which granted counsel’s petition to withdraw and
provided Appellant 20 days to file a response. Appellant did not respond, and
on January 19, 2018, the PCRA court dismissed Appellant’s petition.
Appellant timely filed a notice of appeal. On February 12, 2018, the
PCRA court ordered Appellant to file a concise statement of errors complained
of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). Appellant did not
file a statement, and on March 9, 2018, the PCRA court issued an opinion
concluding that Appellant had waived all issues on appeal for failing to file
timely a concise statement. See PCRA Court Opinion, 3/9/2018.
On March 16, 2018, Appellant pro se filed an application for relief with
this Court, claiming that he did not receive a copy of the concise statement
order, and requesting that he be permitted to file his concise statement. On
March 23, 2018, this Court entered an order directing the PCRA court to
determine whether it had served Appellant with a copy of its concise statement
order. This Court suspended the briefing schedule and retained jurisdiction.
Meanwhile, on March 19, 2018, Appellant filed a concise statement.
On April 17, 2018, the PCRA court filed an opinion stating that the
concise statement order was not mailed to Appellant’s proper address until
March 5, 2018; thus, it concluded Appellant’s March 19, 2018 concise
statement was timely filed. PCRA Court Opinion, 4/17/2018, at 1. The PCRA
court, however, also learned that Appellant was never served the Rule 907
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notice, which granted counsel’s petition to withdraw and permitted Appellant
to file a response.1 Thus, the PCRA court requests that this Court remand the
case to permit Appellant to file a response to the Rule 907 notice. Id. at 2.
On appeal, Appellant argues, inter alia, that PCRA counsel was
ineffective in her representation.2 See Appellant’s Brief at 5 (unnumbered).
We have held that “a PCRA petitioner cannot assert claims of PCRA counsel
ineffectiveness for the first time on appeal.” Commonwealth v. Henkel, 90
A.3d 16, 28 (Pa. Super. 2014). In fact, the time to raise such a claim is in
response to the Rule 907 notice, which in this case, Appellant never received.
See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa. Super. 2012) (“[A]
petitioner must allege any claims of ineffectiveness of PCRA counsel in a
response to the court’s notice of intent to dismiss.”).
Thus, we agree with the PCRA court that remand is necessary; we
cannot permit the court’s error to cause Appellant to waive a potential issue
for review.
____________________________________________
1 Counsel indicated that she received a copy of that notice, but she never sent
it to Appellant. The clerk of courts also did not serve Appellant with that
notice. PCRA Court Opinion, 4/17/2018, at 1 n.1.
2 This claim is raised in his statement of questions involved and not in the
argument section of Appellant’s brief.
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Accordingly, we vacate the January 19, 2018 order dismissing
Appellant’s PCRA petition and remand for the PCRA court to re-file and send
its Rule 907 notice to Appellant.3
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/2018
____________________________________________
3 In essence, due to a breakdown in the court’s operations, we are re-setting
the clock in this case to December 20, 2017, when the PCRA court entered its
Rule 907 notice.
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