Com. v. Long, S. ( 2023 )

J-S43033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SPENCER LONG :
:
Appellant : No. 492 EDA 2022
Appeal from the PCRA Order Entered January 26, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001874-2016
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 6, 2023
Appellant Spencer Long appeals from the order dismissing his timely
first petition filed pursuant to the Post Conviction Relief Act1 (PCRA).2
Appellant contends the PCRA court erred in permitting PCRA counsel to
withdraw. After review, we vacate the PCRA court’s order and remand for
further proceedings consistent with this memorandum.
The PCRA court summarized the relevant facts and procedural history
of this matter as follows:
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1 42 Pa.C.S. §§ 9541-9546.
2 The record reflects that the order dismissing Appellant’s PCRA petition was
dated January 4, 2022. See Order, 1/4/22. The record further reflects that
the order was entered on the docket on January 4, 2022, and again on January
26, 2022. In any event, Appellant’s notice of appeal was filed on February 2,
2022, and it was therefore timely. See Pa.R.A.P. 903(a) (providing that “the
notice of appeal . . . shall be filed within 30 days after the entry of the order
from which the appeal is taken”).
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On January 19, 2017, Philadelphia Police Detective Michael Repici
(hereinafter Detective Repici) testified at Appellant’s suppression
hearing and stated that on December 18, 2015, he was assigned
to investigate a shooting that occurred at 27th and Thompson
Streets in the city and county of Philadelphia. During the
investigation, Detective Repici quickly learned that Appellant and
the victim, Marquis McClain (hereinafter Mr. McClain), knew each
other, the incident was over a girl, and prior to the shooting, the
victim was arguing with Little Spence.
Appellant was arrested on December 30, 2015. During the search
incident to arrest, officers recovered a black LTE cellphone.
Detective Repici proceeded to confirm the number associated with
the LTE cellphone, which was found to be registered to Appellant,
and that the LTE cellphone was operational.
Detective Repici subsequently prepared a search warrant in order
to obtain the subscriber information, call records, and GPS
locations pertaining to Appellant’s cellphone. Detective Repici
explained that the purpose of said warrant was to corroborate
existing evidence that the victim and Appellant had been talking
to one another just before the shooting occurred. Detective Repici
also applied for search warrants pertaining to the victim’s phone
and the phone number of Aleya Porterfield. Aleya Porterfield was
romantically involved with both the Appellant and the victim. The
victim’s phone records revealed that he was in fact, in contact with
[Appellant] on that date and time shortly before and up until the
shooting.
Later, Detective Repici obtained a second search warrant in
connection with Appellant’s cellphone. The purpose of this
warrant was for a dump of the physical phone itself to obtain
everything physical out of the phone: texts, call logs, and
subscriber information. For each search warrant, Detective Repici
used the same language to identify the items to be searched and
seized. More specifically, the warrants stated, incoming/outgoing
call records duration, time and cell site tower locations, text
messages and photos for the cellular phone number of 267-499-
6993 from 12/16/15 to present time. On both warrants, Detective
Repici identified phone records as the property to be seized.
Devon Campbell (hereinafter Ms. Campbell), a Mobile Device
Forensic Examiner for the Philadelphia District Attorney’s Office,
also testified at the suppression hearing. Ms. Campbell confirmed
that her partner, with whom she works as a tag team, received
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Appellant’s cellphone, as well as the search warrant. Ms.
Campbell’s partner extracted the data from the cellphone. Before
the data was downloaded from the cellphone, the examiners did
not check for the creation date of the data. Ms. Campbell
explained, there is no way to limit what you get from that dump.
On January 19, 2017, the Court denied Appellant’s Motion to
Suppress.
At the jury trial, the Commonwealth called Edward Dixon
(hereinafter Mr. Dixon) to testify. Mr. Dixon worked as an auto
mechanic at a garage located at the corner of Cabot and 27th
Street. Mr. Dixon stated that he knew the victim, and the victim
always call[ed him]pop. Mr. Dixon saw the victim on December
18, 2015, when the victim pulled up and stopped in the street in
front of the garage. Mr. Dixon testified that he spoke with the
victim for maybe two minutes before the victim left and turned off
Cabot Street onto 27th Street, in the direction of Thompson
Street. Following the victim’s departure, Mr. Dixon heard
gunshots.
Ten to fifteen minutes after Mr. Dixon heard the gunshots, he
spoke to the victim on the phone. The victim told Mr. Dixon to
call [the victim’s] mom. Approximately five minutes later, the
victim again called Mr. Dixon and asked if Mr. Dixon had called the
victim’s mother. The victim also said, Spencer shot me. The
prosecutor asked, did you know who he was referring to when he
said Spencer shot me? Mr. Dixon replied, yes. Mr. Dixon then
indicated that the victim was referring to the Appellant and
testified, that’s the only Spencer I know around there.
PCRA Ct. Op., 5/25/22, at 2-4 (citations omitted and formatting altered).
On December 18, 2015, [Appellant] was arrested and charged
with two counts each of attempted murder, aggravated assault,
simple assault, and recklessly endangering another person
[(REAP)], and single count[s] of possession of an instrument of
crime, possession of firearm prohibited, firearms not to be carried
without a license, and carrying a firearm on public streets in
Philadelphia.[FN1]
[FN1]18 Pa.C.S. § 901(a); 18 Pa.C.S. § 2702(a)(1); 18
Pa.C.S. § 2701(a); 18 Pa.C.S. § 2705; 18 Pa.C.S. § 907; 18
Pa.C.S. § 6105(a)(1); 18 Pa.C.S. § 6106(a)(1); [and] 18
Pa.C.S. §6108 (respectively).
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Id. at 1 (some formatting altered).
Appellant proceeded to a jury trial on April 19, 2017, and at the
conclusion of trial on April 27, 2017, the jury found Appellant guilty of one
count each of attempted murder, aggravated assault, REAP, firearms not to
be carried without a license, and carrying a firearm on public streets in
Philadelphia. N.T., 4/27/17, at 41. On June 18, 2018, the trial court
sentenced Appellant to an aggregate term of ten to twenty years of
incarceration. N.T., 6/18/18, at 13.
Appellant filed a direct appeal, and this Court affirmed Appellant’s
judgment of sentence. See Commonwealth v. Long, 3075 EDA 2018, 2020
WL 7028995 (Pa. Super. filed Nov. 30, 2020) (unpublished mem.). Our
Supreme Court denied Appellant’s petition for allowance of appeal on June 8,
2021. See Commonwealth v. Long, 518 EAL 2020, 256 A.3d 427 (Pa. filed
Jun. 8, 2021). Appellant did not pursue a writ of certiorari in the United States
Supreme Court.
On August 17, 2021, Appellant filed a timely pro se PCRA petition, and
Douglas L. Dolfman, Esq. (PCRA Counsel), was appointed to represent
Appellant. On October 7, 2021, PCRA Counsel filed a Turner/Finley letter3
and motion to withdraw as counsel. On October 29, 2021, the PCRA court
sent Appellant its notice of intent to dismiss Appellant’s PCRA petition without
____________________________________________
3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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a hearing pursuant to Pa.R.Crim.P. 907, and Appellant filed a pro se response
on November 19, 2021. The PCRA court dismissed Appellant’s PCRA petition
without a hearing on January 4, 2022, and it granted PCRA Counsel’s motion
to withdraw. Appellant, through new counsel, David W. Barrish, Esq. (Current
Counsel), filed a timely appeal. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues:
A. Whether the PCRA court erred, when it accepted the Finley
letter, filed by PCRA Counsel in this matter, and dismissed
Appellant’s request for PCRA relief, as this Finley letter does not
fulfill all of the requirements of Turner/Finley and Pitts?[4]
B. Whether the PCRA court erred, when it accepted the Finley
letter, filed by PCRA Counsel in this matter, and dismissed
Appellant’s request for PCRA relief, as there were issues of
arguable merit, that could have been raised, by PCRA counsel, in
an amended PCRA petition?
Appellant’s Brief at 4 (formatting altered).
Appellant first contends that the PCRA court erred in granting PCRA
Counsel’s motion to withdraw because PCRA Counsel failed to satisfy the
requirements to withdraw under Turner/Finley. Appellant’s Brief at 20-21.
Specifically, Appellant asserts that PCRA Counsel’s Turner/Finley letter did
not explain the nature and extent of counsel’s review, it did not list issues
Appellant wanted to raise, and it failed to provide a basis upon which the PCRA
court could conclude that Appellant’s issues were meritless. Id. at 21-22.
____________________________________________
4 Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).
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The Commonwealth and the PCRA court agree with Appellant’s first
claim of error. Moreover, both the Commonwealth and the PCRA court
concede that the order dismissing Appellant’s PCRA petition without a hearing
and granting PCRA counsel’s petition to withdraw should be vacated and
remanded because PCRA Counsel failed to satisfy the requirements of
Turner/Finley. See Commonwealth’s Brief at 19-20; PCRA Ct. Op., 5/25/22,
at 7-9. We agree.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257,
1265 (Pa. 2014) (citation omitted).
As stated previously, the underlying PCRA petition is Appellant’s first
petition. “A convicted defendant has a right under the Rules of Criminal
Procedure to the assistance of counsel on a first PCRA petition.”
Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019)
(citations omitted). “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.” Id. (citations omitted).
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Moreover:
[i]f 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.
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. Where PCRA counsel’s no-merit
letter does not discuss all of the issues that the convicted
defendant has raised in a first 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.
Id. (citations omitted).
In Appellant’s pro se PCRA petition, Appellant cites to pages twenty-
three through twenty-five of the notes of testimony from a pre-trial hearing
held on April 18, 2017. See Pro Se PCRA Petition, 8/17/21, at 4. A review of
the record reveals that during the April 18, 2017 hearing, Ramsey Younis, Esq.
(Trial Counsel), argued an issue concerning the seizure of certain texts and
photographic evidence that was allegedly outside the scope of a search
warrant. See N.T., 4/18/17, at 23-25. The trial court informed Trial Counsel
that this issue is waived because it was not raised when Appellant’s
suppression motion was litigated. See id. at 23-24. Trial Counsel responded
that if this evidence was available to the defense at the time the suppression
motion was litigated, then he was ineffective for failing to raise the issue. See
id. at 25.
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However, in the Turner/Finley letter, PCRA Counsel fails to address the
allegedly improperly seizure of evidence or the claim of ineffectiveness for
failing to move for suppression of that evidence. Rather, in the Turner/Finley
letter PCRA Counsel states: “it is my professional opinion that the issues raised
in [Appellant’s] pro se PCRA [petition] does not provide a basis for relief under
the [PCRA], and that there are no further issues which could be raised in a
counseled petition.” Turner/Finley Letter, 10/7/21, at 1 (unnumbered).
PCRA Counsel then generally identifies the issues raised in Appellant’s pro se
PCRA petition as follows: “[Appellant] baselessly alleges his constitutional
rights were infringed and ineffective assistance of counsel.” Id. at 2
(unnumbered). PCRA Counsel fails to set forth in any detail the issues
Appellant wished to raise on appeal or explain why the issues are meritless.
Additionally, PCRA Counsel’s Turner/Finley letter does not include any
indication that Appellant was served with a copy of this document.
After review, we conclude that the PCRA court erred in dismissing
Appellant’s PCRA petition and granting PCRA Counsel’s petition to withdraw.
See Ousley, 21 A.3d at 1242. The record reflects that PCRA Counsel neither
advocated for Appellant on the merits of the petition, nor did he file a no-merit
letter that meets the requirements of Turner/Finley. See Kelsey, 206 A.3d
at 1139. Accordingly, we agree with the parties and the PCRA court that the
order dismissing Appellant’s PCRA petition and granting PCRA Counsel’s
motion to withdraw must be vacated and the matter remanded to the PCRA
court. On remand, Appellant shall be permitted to file an amended counseled
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PCRA petition, or should Current Counsel conclude that in the exercise of his
professional judgment “the issues raised in the PCRA proceeding are without
merit, counsel may file an adequate no-merit letter that addresses all of the
issues raised in Appellant’s PCRA petition and move to withdraw.” Id.(citations omitted).5
Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2023
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5 In light of our conclusion that the PCRA court’s order must be vacated and
the case remanded, we do not reach Appellant’s second issue in which he
asserts that the issues raised in his PCRA petition have arguable merit. See
Kelsey, 206 A.3d at 1139 n.4 (Pa. Super. 2019) (stating “[b]ecause we
conclude that PCRA court’s order must be vacated on this ground, we do not
address any of the other issues raised by [a]ppellant in this appeal.”).
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