J-S10006-19
2019 PA Super 86
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH KELSEY :
:
Appellant : No. 3619 EDA 2017
Appeal from the PCRA Order October 13, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004554-2010
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.
OPINION BY COLINS, J.: FILED MARCH 22, 2019
Appellant, Joseph Kelsey, appeals, pro se, from the order of the Court
of Common Pleas of Philadelphia County that dismissed his first petition filed
under the Post Conviction Relief Act (“PCRA”)1 without a hearing. For the
reasons set forth below, we vacate the PCRA court’s order and remand this
case for appointment of new PCRA counsel.
This matter arises out of a robbery and fatal shooting in a dispute over
a marijuana sale. On February 25, 2014, a jury convicted Appellant of second-
degree murder, robbery, criminal conspiracy, carrying a firearm without a
license, carrying a firearm in public in Philadelphia, possession of an
instrument of crime, and intimidation of a witness.2 The trial court sentenced
Appellant to life imprisonment without parole for the second-degree murder
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1 42 Pa.C.S. §§ 9541–9546.
218 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), 903 (3701(a)(1)(i) related),
6106(a)(1), 6108, 907(a), and 4952(a)(1), respectively.
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* Retired Senior Judge assigned to the Superior Court.
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conviction and a consecutive sentence of five to ten years’ imprisonment for
the witness intimidation conviction. The trial court also imposed concurrent
sentences of five to ten years’ imprisonment for both the robbery and
conspiracy convictions, a concurrent sentence of two and one-half to five years
imprisonment for carrying a firearm without a license, and no further penalty
for the carrying a firearm in public and possession of an instrument of crime
convictions.
Appellant’s trial counsel filed a direct appeal challenging the sufficiency
of the evidence and challenging the robbery sentence as barred by merger.
On June 23, 2015, this Court affirmed the judgment of sentence with respect
to all of the convictions other than robbery and vacated the concurrent robbery
sentence, without remand to the trial court, on the ground that the robbery
conviction merged for sentencing purposes with the second-degree murder
conviction. Commonwealth v. Kelsey, 122 A.3d 1141 (Pa. Super. 2015)
(unpublished memorandum). Trial counsel filed a petition for allowance of
appeal, which the Pennsylvania Supreme Court denied on February 1, 2016.
Commonwealth v. Kelsey, 131 A.3d 490 (Pa. 2016).
On February 8, 2017, Appellant filed a timely pro se PCRA petition. In
this prolix petition, Appellant listed over 20 issues, including claims that the
Commonwealth failed to comply with Pa.R.Crim.P. 600, that three
Commonwealth witnesses gave false testimony, that the Commonwealth
withheld exculpatory evidence, that the charging documents and arrest
warrant were defective, and that trial counsel was ineffective. PCRA Petition
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at 2, 4, 7-8. Appellant’s claims of ineffectiveness of trial counsel included
claims that trial counsel failed to assert the above arguments, that trial
counsel misrepresented to Appellant’s family that Appellant was going to plead
guilty, that trial counsel failed to inform Appellant of a plea offer, that trial
counsel failed to inform Appellant of his right to testify, that trial counsel failed
to interview witnesses and retain experts, that trial counsel failed to file a
motion to suppress, that trial counsel failed to obtain the results of
Commonwealth tests on evidence, that trial counsel failed to investigate
Appellant’s mental health status and the mental health status of witnesses,
and that trial counsel failed to request jury instructions on defenses to
accomplice liability and conspiracy and on the lesser included offenses of
voluntary manslaughter and involuntary manslaughter. Id.
In March 2017, the PCRA court appointed counsel to represent Appellant
with respect to his PCRA petition. On August 18, 2017, PCRA counsel filed a
motion to withdraw and a 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). In his no-merit letter, PCRA counsel
correctly stated that the PCRA petition was timely filed, briefly discussed
Appellant’s Rule 600 claim, the claims that two Commonwealth witnesses
committed perjury, the claim that trial counsel misrepresented to Appellant’s
family that Appellant was going to plead guilty, and the claims concerning the
charging documents and Appellant’s arrest, and stated his conclusions that
those issues were meritless. Turner/Finley Letter at 4-6. PCRA counsel also
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discussed in his no-merit letter the legal standard applicable to claims of
ineffective assistance of counsel, stated a single sentence conclusion that
Appellant’s “rights were vigilantly protected” by trial counsel, and represented
that he found no issues of merit in his independent review of the record. Id.
at 2-3, 6-7.
On September 12, 2017, the PCRA court issued a notice pursuant to
Pa.R.Crim.P. 907 of its intent to dismiss Appellant's petition without a hearing.
Appellant filed a timely response to the Rule 907 notice in which he specifically
asserted that PCRA counsel’s no-merit letter failed to address all of the issues
in his PCRA petition, asserted that PCRA counsel was ineffective, and sought
to amend the PCRA petition. Response to Rule 907 Notice at 1-2, 10-11, 14-
16, 26. On October 13, 2017, the PCRA court dismissed Appellant’s PCRA
petition as lacking merit.3
Appellant timely filed this pro se appeal from the dismissal of his PCRA
petition. In his Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, Appellant, in addition to raising issues concerning the merits of his
PCRA petition, reiterated his claim that he had been denied effective
assistance of counsel on the PCRA petition and that PCRA counsel did not
conduct a sufficient review and investigation of the record and the claims that
Appellant sought to raise. Rule 1925(b) Statement at 4. In its opinion, the
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3 Although only an order dismissing the PCRA petition is in the record, the
docket entries state that the PCRA court on the same date granted PCRA
counsel leave to withdraw.
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PCRA court made its own analysis of claims raised in the PCRA petition,
including claims not addressed by PCRA counsel, but did not address the
issues of the sufficiency of PCRA counsel’s no-merit letter and his
representation of Appellant.
In his brief before this Court, Appellant raises 16 issues with respect to
merits of his PCRA petition and also raises the following issue with respect to
PCRA counsel:
Was the Appellant prejudiced and/or deprived fundamental and
substantive right(s) to the assistance of counsel on his first PCRA,
a fair opportunity to have issues addressed in accordance with the
Post Conviction Relief Act when appointed PCRA counsel … filed a
no-merit letter that did not meet the requirements in filing such
letter, and the PCRA court subsequently dismissed said Petition
without a hearing?
Appellant’s Br. at 7, 55-59. The Commonwealth does not concede that any of
the challenges to Appellant’s convictions in the PCRA petition are meritorious,
but contends that PCRA counsel’s no-merit letter was inadequate and that the
PCRA court’s order must therefore be vacated and this matter remanded for
appointment of new PCRA counsel. We agree.4
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its order is free of legal error.
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014); Commonwealth
v. Cherry, 155 A.3d 1080, 1082 (Pa. Super. 2017).
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4 Because we conclude that PCRA court’s order must be vacated on this
ground, we do not address any of the other issues raised by Appellant in this
appeal.
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The PCRA petition here is a first PCRA petition. A convicted defendant
has a right under the Rules of Criminal Procedure to the assistance of counsel
on a first PCRA petition. Pa.R.Crim.P. 904(C); Cherry, 155 A.3d at 1082;
Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en
banc). “The indigent petitioner’s right to counsel must be honored regardless
of the merits of his underlying claims, even where those claims were
previously addressed on direct appeal, so long as the petition in question is
his first.” Cherry, 155 A.3d at 1082 (quoting Commonwealth v. Powell,
787 A.2d 1017 (Pa. Super. 2001)).
If PCRA counsel seeks to withdraw on the ground that the issues raised
by the PCRA petitioner are without merit, he must satisfy the following
requirements: he must file a sufficient no-merit letter, send the PCRA
petitioner copies of the application to withdraw and no-merit letter, and advise
the PCRA petitioner of his right to proceed pro se or with a privately retained
attorney. Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super.
2016); Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).
The no-merit letter must set forth: 1) the nature and extent of counsel’s
review of the case; 2) each issue that the petitioner wishes to raise on appeal;
and 3) counsel’s explanation of why each of those issues is meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009); Turner, 544
A.2d at 928-29; Rykard, 55 A.3d at 1184; Commonwealth v. Glover, 738
A.2d 460, 464 (Pa. Super. 1999). Where PCRA counsel’s no-merit letter does
not discuss all of the issues that the convicted defendant has raised in a first
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PCRA petition and explain why they lack merit, it does not satisfy these
mandatory requirements and dismissal of the PCRA petition without requiring
counsel to file an amended PCRA petition or a further, adequate no-merit letter
is a deprivation of the right to counsel on the PCRA petition. Commonwealth
v. Karanicolas, 836 A.2d 940, 945-47 (Pa. Super. 2003); Glover, 738 A.2d
at 464-65; Commonwealth v. Mosteller, 633 A.2d 615, 617-18 (Pa. Super.
1993).
Here, it is clear that PCRA counsel’s no-merit letter was seriously
deficient. PCRA counsel’s no-merit letter discussed only a subset of the issues
that Appellant stated in his PCRA petition. Notably, PCRA counsel’s no-merit
letter neither listed nor discussed most of Appellant’s claims that trial counsel
was inadequate, including claims that trial counsel failed: to inform Appellant
of a plea offer; to inform Appellant of his right to testify; to interview witnesses
and retain experts; to file a motion to suppress; to obtain the results of
Commonwealth tests on evidence; to investigate Appellant’s mental health
status and the mental health status of witnesses; and to request certain jury
instructions.5 While the inadequacy of PCRA counsel’s no-merit letter is
waived if not raised before the PCRA court and this Court, Pitts, 981 A.2d at
879-80 & nn.3 & 4, Appellant has fully raised and preserved this issue at all
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5Indeed, PCRA counsel’s no-merit letter not only does not discuss most of
Appellant’s ineffective assistance of counsel claims, it also misidentifies
Appellant’s trial counsel as another attorney who did not represent Appellant.
Turner/Finley Letter at 1, 6.
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stages of this proceeding and has specifically asserted and briefed this issue
in this appeal.
We recognize that the PCRA court conducted an independent review of
the claims that it believed were asserted in the PCRA petition and that its
review went beyond PCRA counsel’s inadequate no-merit letter. The error
here, however, is the denial of the assistance of counsel, not the sufficiency
of the PCRA court’s opinion or whether Appellant’s claims in his PCRA petition
are meritorious. Even where a pro se first PCRA petition appears on its face
to be meritless, the defendant is entitled to representation by counsel before
that determination is made. Commonwealth v. Ramos, 14 A.3d 894, 895-
96 (Pa. Super. 2011); Commonwealth v. Stout, 978 A.2d 984, 988 (Pa.
Super. 2009).
Because Appellant did not waive his right to representation by counsel
and PCRA counsel neither represented Appellant on the merits of the PCRA
petition nor filed a sufficient no-merit letter that addressed all of Appellant’s
claims, the PCRA court’s dismissal of Appellant’s PCRA petition must be
vacated and remand to the PCRA court for appointment of new PCRA counsel
is required. Cherry, 155 A.3d at 1083; Glover, 738 A.2d at 465; Mosteller,
633 A.2d at 617-18. On remand, Appellant’s new counsel shall be permitted
to file an amended PCRA petition or, if counsel concludes in the exercise of his
or her professional judgment that the issues raised in the PCRA proceeding
are without merit, counsel may file an adequate no-merit letter that addresses
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all of the issues raised in Appellant’s PCRA petition and move to withdraw.
Cherry, 155 A.3d at 1083; Glover, 738 A.2d at 465.
Order vacated. Case remanded with instructions to appoint new PCRA
counsel. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/19
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