J-S78045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JERROLD SISCO
Appellant No. 987 WDA 2016
Appeal from the PCRA Order June 28, 2016
in the Court of Common Pleas of Jefferson County Criminal Division
at No(s): CP-33-CR-0000402-2012
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.
JUDGMENT ORDER BY FITZGERALD, J.: FILED OCTOBER 28, 2016
Appellant, Jerrold Sisco, appeals from the order of the Jefferson
County Court of Common Pleas denying his Post Conviction Relief Act1
petition. Appellant’s counsel, George N. Dagnir, Esq., has filed a petition to
withdraw representation pursuant to Anders v. California, 386 U.S. 738
(1967).2
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
We note that in Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super.
2007), this Court explained the standard for withdrawal of counsel on
collateral review.
Counsel petitioning to withdraw from PCRA representation
must proceed not under Anders but under
Commonwealth v. Turner, [ ] 544 A.2d 927 ([Pa.]
1988), and Commonwealth v. Finley, [ ] 550 A.2d 213
([Pa. Super.] 1988). Similar to the Anders situation,
Turner/Finley counsel must review the case zealously.
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The facts are unnecessary for our disposition. The relevant procedural
history of this case as stated by the PCRA court is as follows:
When [Appellant] filed a document specifically
requesting PCRA relief on December 16, 2015, the [c]ourt
treated it as an amendment to the unanswered [pro se]
Motion for Discovery and to Produce Transcripts he had
filed on July 12, 2013, which was well within the PCRA’s
Turner/Finley counsel must then submit a “no-merit”
letter to the trial court, or brief on appeal to this 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/brief; (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.
* * *
It is thus apparent that Anders and Turner/Finley are
close cousins, bearing similarities in that counsel is
required to examine the record, present issues, and
request permission to withdraw. However, there are also
significant differences. Anders applies to direct appeals;
Turner/Finley applies to PCRA cases. Anders counsel is
not permitted to withdraw unless the appeal is wholly
frivolous, but Turner/Finley counsel is permitted to do so
if the case lacks merit, even if it is not so anemic as to be
deemed wholly frivolous. Also, Anders counsel must not
argue against the client’s interests while Turner/Finley
counsel must do so, articulating why the client’s claims
have no merit.
Id. at 721–22 (some citations omitted).
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statute of limitations. PCRA counsel filed an additional
amendment on March 10, 2016, and the court convened a
hearing on May 31, 2016 to entertain [Appellant’s]
ineffective assistance of counsel claims.
PCRA Ct. Op., 6/28/16, at 1. The PCRA court denied the petition and this
appeal followed. Counsel filed a statement of intent to file an Anders brief
pursuant to Pa.R.A.P. 1925(c)(4).
In his Anders brief, counsel states that “[a]t the time of preparing the
within brief PCRA Counsel was not in possession of the transcripts of the
PCRA evidentiary hearing held May 31, 2016, despite filing a request for
same at the time of filing the notice of appeal.” Anders Brief at 6.3
However, the notes of testimony from the PCRA hearing are in the certified
record on appeal.4
We direct counsel to comply with the Turner/Finley requirements.
Upon further review of the record, if counsel finds a meritorious issue, an
advocate’s brief may be filed. We order the Prothonotary to enter a new
briefing schedule.
Petition to withdraw denied without prejudice. Panel jurisdiction
retained.
3
The Commonwealth did not file a brief.
4
We note that counsel requested the notes of testimony on July 6, 2016.
On July 14, 2016, the notes of testimony from May 31, 2016 were filed. The
Anders brief was filed on August 11, 2016.
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