Com. v. Pressley, J.

J-S82042-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEVONTE PRESSLEY, :
:
Appellant : No. 2726 EDA 2017

Appeal from the PCRA Order June 14, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004653-2013

BEFORE: LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 21, 2019

Jevonte Pressley (Appellant) appeals from the June 14, 2017 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the order and remand for

further proceedings consistent with this memorandum.

By way of background, on May 13, 2014, a jury convicted Appellant of

various crimes stemming from a robbery of a 7-Eleven store in 2013. On

August 13, 2014, Appellant was sentenced to consecutive terms of 62 to 180

months of incarceration for robbery, 42 to 174 months for robbery of a

motor vehicle, and 12 to 42 months for possessing an instrument of crime.

No further penalty was imposed for Appellant’s receiving stolen property

convictions. Appellant filed a notice of appeal, challenging whether the

search warrant that led to his arrest was supported by probable cause. This

*Retired Senior Judge assigned to the Superior Court.
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Court rejected his claim of error and affirmed his judgment of sentence on

September 15, 2015. Commonwealth v. Pressley, 133 A.3d 70 (Pa.

Super. 2015) (unpublished memorandum). Appellant did not seek further

appellate review.

Appellant pro se timely filed a PCRA petition on October 28, 2015,

challenging the ineffectiveness of his trial counsel for failing to challenge the

scope of the warrant, insomuch as the warrant was issued for an entire

rental complex as opposed to Appellant’s specific dwelling. Over a year

passed before the PCRA court finally appointed Christopher J. Evarts,

Esquire, to represent Appellant on January 25, 2017.1 In lieu of filing an

amended petition, Attorney Evarts filed a 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 April 11, 2017. On

May 23, 2017, the PCRA court filed a notice of its intent to dismiss

Appellant’s petition pursuant to Pa.R.Crim.P. 907. On June 14, 2017, the

docket indicates that the PCRA court dismissed Appellant’s petition and

permitted Attorney Evarts to withdraw, but no separate order to that effect

appears in the certified record.

1 In the meantime, Appellant made multiple inquiries to the PCRA court
regarding the status of the appointment. There is no explanation in the
record for the lengthy delay in appointing counsel. Our Supreme Court has
made clear that “[t]he PCRA court [has] the ability and responsibility to
manage its docket and caseload and thus has an essential role in ensuring
the timely resolution of PCRA matters.” Commonwealth v. Renchenski,
52 A.3d 251, 260 (Pa. 2012).

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Following the docket entry noting the dismissal of the petition, a

handwritten letter from Appellant to the PCRA judge appears in the record,

wherein Appellant lists the docket number and informed the court that he

never received a copy of Attorney Evarts’s Turner/Finley letter and did not

have an opportunity to respond to the letter.2 Letter to Judge Foglietta,

6/19/2017, at 1. Appellant also informed the court that he did not receive a

copy of the order dismissing the petition and claimed the only reason he

knew that his petition was dismissed was because he happened to check his

docket. Id. Appellant averred that Attorney Evarts had failed to

communicate with him and effectively had abandoned him. Id. Appellant

closed by stating that he wished to appeal the decision dismissing his

petition. Id.

On June 23, 2017, Appellant filed a second pro se PCRA petition,

raising similar allegations as his first petition.3 On August 15, 2017, the

PCRA court appointed Peter Levin, Esquire, to represent Appellant. Two

2A second letter from Appellant addressed “to whom it may concern” was
docketed on the same date containing similar averments. Letter to Whom it
May Concern, 6/19/2017, at 1.

3 The PCRA court ultimately dismissed this petition as prematurely filed due
to this pending appeal in accordance with Commonwealth v. Lark, 746
A.2d 585 (Pa. 2000) (holding a subsequent PCRA cannot be filed until the
resolution of review of pending PCRA petition by the highest state court in
which review is sought, or upon expiration of the time for seeking such
review).

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days later, on August 17, 2017, Appellant filed pro se a notice of appeal

from the June 14, 2017 order dismissing his PCRA petition.4

Before we address the substantive issues raised by Appellant, we must

determine whether Appellant timely filed his notice of appeal.5 See

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)

(explaining that the timeliness of an appeal impacts our jurisdiction). Rule

902 requires a notice of appeal to be filed within 30 days after the entry of

the order from which the appeal is taken. Pa.R.A.P. 902(a). Appellant’s

August 17, 2017 notice of appeal was filed 62 days after the docket reflects

the PCRA court’s dismissal of the PCRA petition. By order dated August 31,

2017, this Court issued a rule to show cause as to why Appellant’s appeal

should not be quashed as untimely filed. Attorney Levin filed a written

response on Appellant’s behalf, indicating Appellant contends he was

abandoned by Attorney Evarts, never received notice of the dismissal from

the PCRA court, and wrote a letter to the PCRA court within the appeal

4 Appellant was represented by Attorney Levin at the time he filed the
August 17, 2017 notice of appeal. While hybrid representation is generally
prohibited, the right to appeal is protected by our Constitution; therefore,
courts must docket a pro se notice of appeal even if the appellant is
represented by counsel. Commonwealth v. Williams, 151 A.3d 621, 623
(Pa. Super. 2016).

5 Both Appellant (through Attorney Levin) and the PCRA court complied with
Pa.R.A.P. 1925. The PCRA court did not address the merits of Appellant’s
claims in its Pa.R.A.P. 1925(a) opinion, and instead opined that Appellant’s
appeal should be quashed for being untimely filed. See Trial Court Opinion,
4/10/2018, at 1-2.

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period stating that he wished to appeal the order dismissing his PCRA

petition. Response to Rule to Show Cause, 9/11/2017, at ¶¶ 5-6.

Under the circumstances presented here, we decline to quash

Appellant’s appeal.6 First, we hold that the clerk of courts should have

treated Appellant’s June 19, 2017 letter indicating his desire to appeal the

June 14, 2017 order as a notice of appeal and forwarded it to this Court.

Appellant listed the docket number and indicated his desire to appeal the

dismissal of his PCRA petition. See Pro se Letter, 6/19/2017, at 1 (“If my

PCRA petition is no longer in your court or lower court period I would like to

say for the record that I wish to appeal your decision.”) (capitalization

altered). Although Appellant’s pro se letter does not appear in the same

form as required by Rule 904, “[f]ailure of an appellant to take any step

other than the timely filing of a notice of appeal does not affect the validity

of the appeal[.]” Pa.R.A.P. 902; see also Pa.R.A.P. 905(b) (requiring the

clerk of courts to “immediately transmit to the prothonotary of the appellate

court named in the notice of appeal a copy of the notice of appeal”);

Commonwealth v. Williams, 106 A.3d 583, 588-89 (Pa. 2014) (holding

the clerk of courts is “obligated to accept and process notices of appeal upon

receipt in accordance with the Rules of Appellate Procedure, notwithstanding

any perceived defects therein”).

6 We note that due to the procedural defects discussed infra, the
Commonwealth does not challenge the timeliness of Appellant’s appeal.
Commonwealth’s Brief at 7.

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Second, even setting aside Appellant’s June 19, 2017 letter indicating

his desire to appeal, we would deem his August 17, 2017 notice of appeal to

be filed timely. “In a criminal case, the date of entry of an order [that

triggers the appeal period] is the date the clerk of courts enters the order on

the docket, furnishes a copy of the order to the parties, and records

the time and manner of notice on the docket.” Commonwealth v.

Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (emphasis added). The rules

of criminal procedure require prompt service of “any order … on each party’s

attorney, or the party if unrepresented.” Pa.R.Crim.P. 114(B); see also

Pa.R.Crim.P. 114(C)(2) (requiring docket entries to contain the date of

receipt in the clerk’s office of the order, the date appearing on the order,

and the date of service of the order); Pa.R.Crim.P. 907(4) (requiring

PCRA court to issue promptly order dismissing PCRA petition without a

hearing, which advises “the defendant by certified mail, return receipt

requested, of the right to appeal from the final order disposing of the

petition and of the time limits within which the appeal must be filed”). Our

review of the docket discloses no indication that the clerk furnished a copy of

the June 14, 2017 order to Appellant, who by virtue of the order was now

unrepresented. Thus, even if Appellant had not filed his handwritten notice

of appeal on June 19, 2017, his August 17, 2017 notice of appeal would

have been timely filed because “the period for taking an appeal was never

triggered.” Jerman, 762 A.2d at 368.

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Having determined that Appellant’s appeal was filed timely, we may

now turn to the issues Appellant presents on appeal. First, we address

Appellant’s challenge to Attorney Evarts’s compliance with Turner/Finley,

and Appellant’s related challenge to the PCRA court’s decision to permit

Attorney Evarts to withdraw. Appellant’s Brief at 21-26. Appellant contends

that Attorney Evarts failed to comply with the Turner/Finley procedure

because his letter did not explain or analyze why Attorney Evarts believed

there were no issues of merit in the case. Id. Moreover, Appellant avers

that Attorney Evarts failed to serve a copy of the letter on Appellant, did not

file a motion to withdraw, and did not inform Appellant he had the right to

proceed with newly-obtained counsel or pro se. Id. He also argues that the

PCRA court erred by permitting Attorney Evarts to withdraw based upon

Attorney Evarts’s failure to comply with the Turner/Finley procedure and

the PCRA court’s failure to conduct its own analysis of the merits and

delineate its reasons as to why Appellant’s petition lacked merit. Id.

Although there is overlap between the claims, a claim that a PCRA

court erred as a matter of law in permitting PCRA counsel to withdraw is

distinct from a claim that PCRA counsel was ineffective. See

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).

Whether PCRA counsel and the PCRA court complied with the mandates of

Turner/Finley is a question of law; therefore, our standard of review is de

novo and our scope of review is plenary. Id. at 1183–84.

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An indigent PCRA petitioner has a rule-based right to counsel for a first

PCRA petition. Pa.R.Crim.P. 904(C). Counsel has a duty either to (1)

amend the petitioner’s pro se petition and present the petitioner’s claims in

acceptable legal terms, or (2) certify that the claims lack merit by complying

with the mandates of Turner/Finley. Commonwealth v. Cherry, 155

A.3d 1080, 1082-83 (Pa. Super. 2017). This Court has stated that

Turner/Finley requires counsel to review the case zealously and

subsequently

submit a “no-merit” letter to the trial court … detailing the
nature and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of
the “no-merit” letter[]; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.

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. Upon doing so, the court will
then take appropriate steps, such as directing counsel to file a
proper Turner/Finley request ….

However, where counsel submits a petition and no-merit
letter that do satisfy the technical demands of Turner/Finley,
the [PCRA court] must then conduct its own review of the merits
of the case. If the court agrees with counsel that the claims are
without merit, the court will permit counsel to withdraw and
deny relief.

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Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)

(citations omitted).

In the instant case, following his appointment to represent Appellant,

Attorney Evarts sent a no-merit letter to the PCRA court, which was filed on

the docket. See generally Turner/Finley letter, 4/11/2017. He did not

file a separate petition or motion to withdraw. Instead, he states in the

letter that because he “[found] no merit in [Appellant’s] allegations” and is

“unable to file [an] amended petition on [Appellant’s] behalf,” he was

“ask[ing] to withdraw as counsel.” Id. at 2 (numbering supplied).

Regarding his review of the case, he states that he “reviewed the quarter

sessions file notes of testimony and corresponded with [Appellant].” Id. at

1.

The only mention of any issue that Appellant wanted to have reviewed

is a generic reference to Appellant’s claim that “his counsel was ineffective;”

elsewhere, the letter also states “[t]he defendants [sic] argument was that

[the] stolen car that was located on a rear driveway at his home at 2525

South Massey St[reet], did not give the police the right to search the house

where he lived.” Id. at 2.

In comparing the Turner/Finley letter to the pro se petition, it is

clear that Attorney Evarts does not accurately represent the issues Appellant

desired to raise. Appellant is very specific in his pro se petition, handwriting

the following issues:

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If a house is zoned as a “multi[-]family” dwelling[,] can law
inforcement [sic] request a search warrant for a whole home not
specifing [sic] where to search such as [apartments] or rooms?

Isn’t it ineffective [assistance of] counsel if pretrial, trial, [and]
sentencing lawyer doesn’t file a motion to dismiss evidence
based on previous question?

Is “2525 Massey St Phila PA 19142” an acceptable description of
premises to be searched if multi[-]family dwelling is known as
zoning description before the search warrant [and] affidavit was
requested?

Pro se PCRA Petition, 10/28/2015, at 6 (capitalization altered). Appellant’s

issues are expressed in a layperson’s terms, but he clearly conveys that the

specific legal issue he wished to challenge is whether his pre-trial counsel

rendered ineffective assistance to him by failing to file a motion to suppress

the evidence recovered in his home based upon a search warrant that listed

an address for a multi-dwelling unit instead of Appellant’s specific

apartment. See id. Attorney Evarts’s Turner/Finley letter, on the other

hand, lists the issue more generically as whether finding the stolen car in the

driveway of 2525 Massey Street permitted the police to search his

apartment. See Turner/Finley letter, 4/11/2017, at 2.

To the extent Attorney Evarts comprehended the issue Appellant

wished to present, his analysis of such issue falls short of what is required

by PCRA counsel. Most of the letter consisted of boilerplate law regarding

the PCRA that was not specific to Appellant’s case. See id. at 1-4. The

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closest the letter comes to explaining why and how Appellant’s issue lacks

merit is the following passage:

The search warrant was valid and during the search of the
premises, the clothes he was wearing on the video of the
robbery were found[. N.T., 5/12/2014, at 30.]

A search warrant is properly issued on the place to be searched
if it is connected to the crime. Commonwealth vs. Crawford 466
A 2nd 1079 (1983) [sic]

Turner/Finley letter, 4/11/2017, at 3.

Simply stating that the search warrant was valid is conclusory.

Further, what was found after the warrant was executed has no bearing on

whether the warrant was sufficient in the first place. The second sentence is

the closest Attorney Evarts gets to explaining how and why he believes

Appellant’s issue lacks merit, but it still falls short, as he fails to apply the

cited case to the facts of Appellant’s case. We conclude that based upon

Attorney Evarts’s failure to advance Appellant’s claim or certify its lack of

merit, Appellant was deprived “of the opportunity of legally trained counsel

to advance his position in acceptable legal terms.” Commonwealth v.

Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003).

Further exacerbating the situation, there is no indication in this letter

or elsewhere in the record that Attorney Evarts ever sent a copy of the

Turner/Finley letter to Appellant. Moreover, it does not appear that

Attorney Evarts ever advised Appellant of his right to proceed pro se or by

new counsel.

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Despite Attorney Evarts’s failure to review anything other than some

unspecified notes of testimony, his failure to file a separate petition to

withdraw, his misrepresentation of the issue Appellant desired to present,

his lack of explanation regarding how and why he believed Appellant’s issue

lacked merit, his failure to send a copy of the letter to Appellant, and his

failure to advise Appellant of his right to proceed pro se or with new counsel,

the PCRA court permitted Attorney Evarts to withdraw. Furthermore,

although the PCRA court states in its Rule 1925(a) opinion that it conducted

its own independent review of the record of the merits of the case before

permitting Attorney Evarts to withdraw, it provided no indication that it did

so prior to dismissing Appellant’s petition. As explained supra, the PCRA

court failed to enter a written order dismissing Appellant’s petition; ergo, the

record is silent as to the PCRA court’s analysis and conclusions prior to

dismissing Appellant’s petition.

Thus, based on the foregoing, we conclude that Attorney Evarts did

not satisfy the requirements of Turner/Finley,7 and therefore, the PCRA

court erred in permitting Attorney Evarts to withdraw.8 Accordingly, we

7 Due to the errors identified supra, the Commonwealth “does not oppose a
remand to ensure counsel[‘s compliance] with the requirements of
[Turner/]Finley.” Commonwealth’s Brief at 8.

8 While ordinarily the effectiveness of PCRA counsel may not be raised for
the first time on appeal, see Commonwealth v. Henkel, 90 A.3d 16 (Pa.
Super. 2014), in this case Appellant never had the opportunity to challenge
counsel’s withdrawal before the PCRA court. Because he was not advised of
(Footnote Continued Next Page)

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vacate the PCRA court’s order dismissing Appellant’s petition, and direct the

PCRA court on remand to appoint new counsel.9 New counsel must either

(Footnote Continued) _______________________

counsel’s request to withdraw and counsel’s assessment that his case lacked
merit, Appellant had no opportunity to respond to the request and no-merit
assessment as contemplated by our case law. See Wrecks, 931 A.2d at
721.

Similarly, Appellant had no opportunity to challenge the PCRA court’s intent
to dismiss his petition pursuant to Rule 907. See Pa.R.Crim.P. 907(1)
(requiring the PCRA court to “give notice to the parties of the intention to
dismiss the petition and shall state in the notice the reasons for the
dismissal;” further requiring the PCRA court to provide the defendant with an
opportunity to respond within 20 days). Although the Rule 907 notice lists
Appellant amongst the recipients upon whom the court served its Rule 907
notice, Appellant’s address is absent. Appellant contends that he did not
have an opportunity to respond in writing to the Rule 907 notice. See Letter
to Judge Foglietta, 6/19/2017, at 1 (“I was unable to respond when you filed
your dismissal notice (within 20 days) on 5/23/17.”); Letter to Whom it May
Concern, 6/19/2017, at 1 (“Judge Angelo Foglietta never sent me a notice of
dismissal of my PCRA [and] allowed me to respond in writing [sic].”)
(capitalization altered). Even if Appellant was served with the Rule 907
notice, the notice simply states that Appellant had 20 days to respond, but
because Appellant had not been provided with the Turner/Finley letter, he
had no indication at that point that Attorney Evarts would not be responding
on his behalf.

Therefore, “Appellant was denied the opportunity to advocate for himself as
to his claims and counsel’s compliance with Turner and Finley before the
PCRA court ruled that the petition lacked merit and allowed counsel to
withdraw.” Commonwealth v. Bush, 197 A.3d 285, 288 (Pa. Super. 2018)
(declining to find waiver based upon Bush’s failure to object to counsel’s
deficient Turner/Finley notice or the PCRA court’s dismissal of his petition
where Bush was not properly advised of his right to respond to counsel’s
motion to withdraw and the docket did not reflect when or if the PCRA court
served its Rule 907 notice upon Bush).

9 This case’s posture is unusual insomuch as the PCRA court appointed
counsel to represent Appellant in his second PCRA petition. Although that
petition was dismissed, Attorney Levin currently represents Appellant on
(Footnote Continued Next Page)

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file an amended PCRA petition or a proper no-merit letter addressing the

claims Appellant wishes to raise. Commonwealth v. Glover, 738 A.2d

460, 465 (Pa. Super. 1999). If the PCRA court subsequently intends to deny

relief without a hearing, it must issue a notice pursuant to Pa.R.Crim.P.

907(a) explaining the reasons for its dismissal, and it must serve the notice

upon Appellant in accordance with Pa.R.Crim.P. 114. In the event new

counsel seeks to withdraw, the PCRA court must ensure counsel’s substantial

compliance with Turner/Finley procedure, and conduct its own

independent review of the merits before dismissing Appellant’s petition via

an order entered in full compliance with Pa.R.Crim.P. 114.10

Order vacated. Remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

(Footnote Continued) _______________________

appeal. The PCRA court is free to appoint Attorney Levin to represent
Appellant on remand.

10Based upon our disposition, we need not address Appellant’s remaining
two issues.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/19

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