Com. v. Fennell, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT FENNELL :
:
Appellant : No. 415 WDA 2019
Appeal from the PCRA Order Entered March 5, 2019
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0001935-2009
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 30, 2019
Robert Fennell appeals from the order, entered in the Court of Common
Pleas of Cambria County, dismissing his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon careful
review, we vacate the PCRA court’s order and remand for further proceedings
consistent with this memorandum.
Fennell, while incarcerated at State Correctional Institute Cresson,
punched Corrections Officer Russell Bollinger in the face. Following a non-jury
trial on June 25, 2010, the court convicted Fennell of two counts of aggravated
assault, and one count each of simple assault, assault by a prisoner, resisting
arrest, and recklessly endangering another person. On August 10, 2010, the
court sentenced Fennell to an aggregate term of 10 to 20 years’ incarceration.
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* Retired Senior Judge assigned to the Superior Court.
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Fennell timely filed a direct appeal. On March 19, 2012, we vacated his
simple assault and aggravated assault convictions, but left the structure of his
sentence intact. Commonwealth v. Fennell, 186 WDA 2011 (Pa. Super.
filed March 19, 2012) (unpublished memorandum). Fennell filed a petition for
allowance of appeal, which our Supreme Court denied.1 On May 9, 2014,
Fennell filed a pro se PCRA petition. The PCRA court appointed counsel, who
filed an amended PCRA petition on August 13, 2014, alleging ineffective
assistance of trial counsel. On July 27, 2015, following an evidentiary hearing,
the PCRA court denied Fennell’s petition. He filed a timely notice of appeal,
and on December 2, 2016, we affirmed the PCRA court’s decision.
Commonwealth v. Fennell, 1280 WDA 2015 (Pa. Super. filed Dec. 2, 2016).
Fennell timely filed a petition for allowance of appeal, which our Supreme
Court denied. Commonwealth v. Fennell, 72 A.3d 600 (Pa. 2013) (Table).
Fennell filed the instant pro se PCRA petition on February 2, 2018. The
Honorable Timothy P. Creany appointed Richard Corcoran, Esquire, to
represent Fennell. Attorney Corcoran informed the PCRA court he could not
represent Fennell because of a conflict; consequently, the PCRA court replaced
Attorney Corcoran with Russell Heiple, Esquire, on June 29, 2018. Order,
6/29/18, at 1. On September 10, 2018, Attorney Heiple filed a letter with the
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1Fennell did not initially file a petition for allowance of appeal, but was later
granted reinstatement of his right to do so after filing a timely PCRA petition.
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PCRA court detailing the deficiencies in some of Fennell’s claims, while stating
other claims “need to be developed and addressed by . . . [the PCRA] court.[2]”
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2 Attorney Heiple’s letter, though critical of Fennell’s claims, does not purport
to be a “no-merit” letter. See Letter, 9/10/18, at 1–2. Reproduced verbatim,
it reads as follows:
Dear Judge Creany;
I have reviewd Mr. Fennell’s PCRA Petition and the Court’s
file including The Superior Court decision filed on December 2,
2016 and the Amended Petition For Post-Conviction Relief filed
August 13, 2014.
Mr. Fennell’s claims that briefs and/or appeals filed in his
behalf were deficient Seem to bec ured by the Superior Court’s
2016 opinion (no. 1379 WDA 2015). Rather Than dismiss his
appeal, the Court addressed numerous issues raised.
Additionally, a Petition for Allowance of Appeal was filed to the
supreme Court of Pennsylvania which was denied.
1. The summons issued was addressed by the Superior
Court.
2. The deficiencies in counsel’s brief/appeal did not keep
the Superior Court
From reviewing his errors in the lower court.
3. The RRRI issue was not previously raised.
4. Failure to have the preliminary hearing recorded was
not previously raised.
5. Criminal record of victim, Russell Bollinger, was not
previously addressed and
The scope of cross-examination to include prior
encounters may not have Been explored in
depth; however, the Superior Court has ruled
that Attorney Sottile did not act unreasonably in
his cross-examination. (pg. 13)
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Letter, 9/10/18, at 1–2. On October 23, 2018, Fennell submitted a motion to
proceed pro se, requesting a hearing to determine whether he waived his right
to counsel knowingly, intelligently, and voluntarily, pursuant to
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6. Petitioner’s claim hat the closing of SCI Cresson which
supports his claim of
Justification was not previously raised.
7. Defendant’s claim that his arraignment did not occur
until the date of trial was
Not previously Addressed and would support a
claim of lack of due process
As Defendant would have not realized the
nature of the charge
Numbers 3,4, and 7 need to be developed and addressed by
this Court.
Letter, 9/10/18, at 1–2 (syntactical, spelling, and grammatical errors in
original).
Basic errors in grammar and spelling aside, Attorney Heiple’s letter represents
an abject failure of legal advocacy, denying Fennell fundamental protections
under Commonwealth v. Turner, 522 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and
raising serious issues under the Rules of Professional Conduct, directly
implicating the requirement to provide competent representation under Rule
1.1. and diligent representation under Rule 1.3. See Commonwealth v.
Mosteller, 633 A.2d 615, 616 (Pa. Super. 1993) (finding PCRA court erred by
failing to reject flawed “no-merit” letter); see also Pa.R.P.C. 1.1, CMT 5
(“Competent handling of particular matter includes inquiry into and analysis
of the factual and legal elements of the problem, and use of methods and
procedures meeting the standards of competent practitioners.”); Pa.R.P.C.
1.3, CMT 1 (“A lawyer should pursue a matter on behalf of a client despite
opposition, obstruction or personal inconvenience to the lawyer, and take
whatever lawful and ethical measures are required to vindicate a client’s cause
or endeavor.”).
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Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Motion to Proceed Pro
Se, 10/23/18, 1 (citing Grazier, supra). The PCRA court did not address
Fennell’s motion. See Order, 12/19/18, at 1–2 (sending materials relevant to
Fennell’s claims to Attorney Heiple). On Feburary 8, 2019, Attorney Heiple
filed a “memorandum in support of relief pursuant to PCRA petition” which
advanced some of Fennell’s claims, while discrediting others. See
Memorandum, 2/8/19, at 1–8 (stating some claims necessitate new trial,
stating the result of others to be “unknown” or that “counsel cannot [a]rgue
that, if true, would impact a finding of guilt.”).
On March 5, 2019, Judge Creany filed an opinion and order denying
Fennell’s PCRA petition on the merits.3 See Opinion, 3/5/19, at 1–9. Fennell
filed a timely pro se notice of appeal. The PCRA court issued an order requiring
Fennell to file a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b); the court, however, neither informed Attorney Heiple of
his client’s pro se filing nor granted Attorney Heiple permission to withdraw.
See Order, 3/21/19, at 1. Both Fennell and the PCRA court complied with
Rule 1925.
Fennell raises the following claim on appeal:
1) Was trial counsel ineffective in failing to pursue and did the
Commonwealth fail to search and provide to counsel
statements of witnes[s]es who would have provided
exculpatory evidence for defendant at trial?
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3We note Judge Creany’s opinion fails to address the fact that Fennell’s claims
appear facially untimely. See Opinion, 3/5/19, at 7.
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Brief of Appellant, at 4.
Preliminarily, we must address Attorney Heiple’s representation of
Fennell. “[O]nce counsel has entered an appearance on a [petitioner’s]
behalf[,] he is obligated to continue representation until the case is concluded
or he is granted leave by the court to withdraw his appearance.”
Commonwealth v. Willis, 29 A.3d 393, 397 (Pa. Super. 2011) (emphasis
added); see also Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. Super.
1993) (“[T]here is no constitutional right to hybrid representation[.]”).
Instantly, the record lacks any indication the court permitted Attorney
Heiple to withdraw from representing Fennell. Attorney Heiple’s filings—
reminiscent of Turner/Finley “no-merit” letters, albeit woefully inadequate—
do not indicate a desire to withdraw. See Letter, 9/10/18, at 1–2; see also
Memorandum, 2/8/19, at 1–8. Furthermore, Fennell filed a number of
materials pro se, including a motion to proceed pro se requesting a Grazier
hearing. Motion to Proceed Pro Se, 10/23/18, 1.
“[I]n any case where a defendant seeks self-representation in a PCRA
proceeding and where counsel has not properly withdrawn, a [Grazier]
hearing must be held.” Commonwealth v. Robinson, 970 A.2d 455, 456
(Pa. Super. 2009); see id at 460 (vacating PCRA court’s order and remanding
case to remedy failure to hold Grazier hearing after PCRA petitioner voiced
desire to proceed pro se). Grazier requires “an on-the record determination”
as to whether that waiver is “a knowing, intelligent, and voluntary one.”
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Grazier, supra at 82. This requirement results from PCRA petitioners lacking
a right to contemporaneous representation both pro se and by counsel. See
Commonwealth v. Pursell, 724 A.2d 293, 251 (Pa. 1999) (prohibiting
hybrid representation in PCRA proceedings); see also Ellis, supra at 1139
(finding no right to hybrid representation on appeal).
As Attorney Heiple was not granted permission to withdraw, and as
Fennell, after indicating his desire to proceed pro se was not afforded a
Grazier hearing, we vacate the denial of PCRA relief and remand for a hearing
consistent with the requirements of Grazier, supra. Robinson, supra at
456. If Fennell retracts his desire to act as his own counsel, new PCRA counsel
shall be appointed. If new counsel finds Fennell’s claims lack merit, he or she
must file a proper Turner/Finley “no-merit” letter and the PCRA court must
concur the claims are meritless before permitting counsel to withdraw. See
Commonwealth v. Widgins, 29 A.3d 816, 817–18 (Pa. Super. 2011)
(requiring valid “no-merit” letter and independent review of record by PRCA
court before permitting withdrawal). We note our concern with the actions of
both Attorney Heiple and the PCRA court, who collectively failed to ensure,
after the appointment of counsel, that Fennell received adequate
representation or understood the implications of waiving representation.
Order vacated. Case remanded for Grazier hearing. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2019
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