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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIKA ROSA :
:
Appellant : No. 2095 EDA 2018
Appeal from the PCRA Order Entered December 22, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006544-2011
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED AUGUST 28, 2019
Appellant, Erika Rosa, appeals pro se from the order entered in the
Bucks County Court of Common Pleas, which denied her first petition filed
under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546.
On February 13, 2012, Appellant entered an open guilty plea to corrupt
organizations, conspiracy, and criminal use of a communication facility. The
court sentenced her on June 18, 2012, to an aggregate 13 to 26 years’
imprisonment, and this Court affirmed the judgment of sentence on August
20, 2013. See Commonwealth v. Rosa, 83 A.3d 1068 (Pa.Super. 2013).
Appellant filed a timely, counseled PCRA petition on April 24, 2014. The
court subsequently let original PCRA counsel withdraw, appointed new PCRA
counsel, and granted Appellant in forma pauperis status. On December 30,
2014, counsel filed an amended petition. The court held a hearing on June 3,
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* Former Justice specially assigned to the Superior Court.
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2016 and denied relief on December 22, 2016. The court sent its order to
counsel for the Commonwealth and to PCRA counsel, who was still counsel of
record. On July 31, 2017, Appellant filed a pro se application for speedy
disposition of her PCRA petition, which suggested she did not know the
outcome of her petition. The court responded on August 15, 2017, informing
Appellant that it had denied her petition on December 22, 2016, and sent a
copy of that letter to PCRA counsel. Nothing in the record shows PCRA counsel
contacted Appellant. Appellant then filed pro se correspondence asserting
PCRA counsel had abandoned her, seeking appointment of new counsel, and
requesting a copy of the order denying her petition. The court did not respond.
On March 1, 2018, Appellant filed a notice of appeal.1 This Court issued
a rule to show cause why the appeal should not be dismissed as untimely.
Appellant responded that she did not know the court had denied her petition
until she received the court’s letter. On November 9, 2018, this Court
discharged the rule and referred the issue to the merits panel.2
Preliminarily, a notice of appeal must be filed within 30 days of entry of
the order from which the appeal is taken. Pa.R.A.P. 903(a). The timeliness
of a notice of appeal also implicates this Court’s jurisdiction. Commonwealth
v. Wooden, ___ A.3d ___, 2019 PA Super 220 (filed July 19, 2019).
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1 No Pa.R.A.P. 1925(b) concise statement was ordered or filed.
2 Notwithstanding Appellant’s failure to mention it, the record makes clear she
is challenging the December 22, 2016 order denying her PCRA petition.
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Additionally, “a criminal defendant has a right to representation of counsel for
purposes of litigating a first PCRA petition through the entire appellate
process.” Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super.
2009) (en banc). See also Pa.R.Crim.P. 904(C), (F)(2) (stating indigent
defendant is entitled to counsel to litigate first PCRA petition, including on
appeal). “The performance of counsel must comply with some minimum
norms, which would include not abandoning a client for purposes of appeal.”
Commonwealth v. Bennett, 593 Pa. 382, 399, 930 A.2d 1264, 1274 (2007).
Instantly, Appellant is indigent, pursuing her first PCRA petition, and
entitled to counsel on appeal. See Pa.R.Crim.P. 904(C), (F)(2); Bennett,
supra; Robinson, supra. The record supports Appellant’s claim of
abandonment, where PCRA counsel failed to inform Appellant of the denial of
her petition or discuss whether Appellant wanted to appeal. See Bennett,
supra (explaining orders denying relief are not sent directly to prisoner;
rather, counsel is sent notice on presumption counsel will inform petitioner of
court’s action). Under these circumstances, the best resolution of this case is
to vacate and remand for a full hearing per Commonwealth v. Grazier, 552
Pa. 9, 713 A.2d 81 (1998). See Wooden, supra (excusing untimeliness of
appellant’s pro se appeal from denial of first PCRA petition, where record
demonstrated counsel had abandoned appellant; vacating and remanding for
Grazier hearing and further proceedings). If Appellant chooses to proceed
pro se, then the court can reinstate its PCRA order; and Appellant can file a
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notice of appeal. If Appellant wants counsel, then the court shall appoint
counsel and reinstate its PCRA order, with service on counsel and Appellant;
and Appellant can proceed with a counseled appeal. See Robinson, supra
(vacating order denying PCRA relief, remanding for Grazier hearing, and
relinquishing jurisdiction; stating once appropriate proceedings are
conducted, order denying PCRA relief can be reinstated, and appellant or
counsel can appeal).3
Order vacated; case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/19
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3Due to our disposition, we deny the Commonwealth’s motion to quash the
appeal as untimely.
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