Com. v. Rehwald, P. ( 2022 )

J-A29020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHILLIP A. REHWALD :
:
Appellant : No. 362 WDA 2021
Appeal from the PCRA Order Entered March 4, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006354-2015
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: JANUARY 3, 2022
Phillip A. Rehwald appeals from the order denying his post-conviction
relief act (“PCRA”) petition. Since Appellant did not receive notice of the PCRA
court’s notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, we vacate
and remand for further proceedings.
The trial court summarized the factual history of the case as follows:
[T]he evidence presented at trial established that [in] early 2015,
[Appellant], then [fifty-five] years old, was dating his neighbor,
Kara Hines, then [nineteen] years old. Kara lived with her mother,
Pamela Johnstone, and her younger sister [(“Victim”)], then
[fourteen] years old. At some point during the relationship,
[Appellant] borrowed [Victim’s] laptop computer and held onto it
for a period of time. On several occasions during the months of
January and February, 2015, the Johnstone[s’] pipes froze due to
the cold weather and the family was without water. On those
occasions, [Appellant] allowed the family to shower at his home.
On two occasions while [Victim] was showering, [Appellant] slid
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* Retired Senior Judge assigned to the Superior Court.
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his cell phone under the door in an attempt to videotape her. The
first attempt was apparently unsuccessful. On the second
attempt, [Appellant] succeeded in capturing approximately [forty-
five] seconds of video depicting [Victim] getting out of the shower,
walking to the sink and preparing to brush her teeth all while
completely naked. When the cell phone was removed from under
the door, the [film]maker’s pajama pants and slippers were visible
on the video. The video was then transferred to [Victim’s] laptop
and the laptop was eventually returned.
At some point thereafter, Kara had occasion to be using her
sister’s laptop and found the video of her sister. Kara showed the
video to her mother, who called the police. Detective Ging of the
Ohio Township Police Department responded and viewed the video
on the laptop computer.
Trial Court Opinion, 7/12/16, at 5.
Police obtained a search warrant for Appellant’s apartment. While they
were executing the warrant, Appellant admitted to making the video and
knowing that Victim was only fourteen years old at the time it was made.
Appellant was arrested and charged with sexual abuse of children—
photographing, sexual abuse of children—dissemination, and invasion of
privacy. After his pretrial motion to suppress was denied, Appellant proceeded
to a jury trial. Appellant was found guilty of all charges and sentenced to
eleven months and fifteen days to twenty-three months of incarceration with
credit for time served. The court also imposed a consecutive five-year term
of probation, lifetime Megan’s Law registration, and ordered Appellant to
comply with the conditions of sex offender court. A timely direct appeal
followed. However, on August 3, 2016, Appellant discontinued the appeal.
Shortly thereafter, Appellant was released on parole.
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In 2017, a detainer was lodged against Appellant for a suspected
probation violation after he was unsuccessfully discharged from a court-
ordered treatment plan. The trial court held a hearing on the violation. At
the hearing, the court referenced Appellant’s refusal to communicate and
cooperate with counsel and the behavior clinic, before ordering a mental
health evaluation. Appellant was eventually found incompetent and
committed to Torrance State Hospital. Appellant was later transferred back
to the Allegheny County Jail and the violation hearing continued. Afterwards,
Appellant was released to a residential treatment program.
In 2019, Appellant was arrested for a second probation violation after
he was, again, unsuccessfully discharged from the court-ordered treatment
program. On August 5, 2019, the trial court1 held a hearing. At its conclusion
the court found that Appellant had violated his probation, revoked his
probation, and sentenced him to two to eight years of incarceration with credit
for time served. Appellant filed a timely post-sentence motion, which was
denied. Appellant also filed a direct appeal, which he later discontinued.
Appellant filed a timely pro se PCRA petition, which is the subject of the
instant appeal. Despite having appointed counsel, Appellant continued to file
numerous pro se pleadings. As a result, PCRA counsel filed a motion
requesting to withdraw, indicating that there was a breakdown in the attorney-
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1The case was transferred at that time to the current trial court because the
original trial judge had retired.
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client relationship and that Appellant wished to “fire” him but keep him as co-
counsel. Following an October 30, 2020 hearing, the PCRA court found that
Appellant had intentionally forfeited his right to counsel by engaging in dilatory
conduct, such as refusing to cooperate with the proceeding. The PCRA court
advised Appellant that he could proceed pro se or retain private counsel and
that he had thirty days to file an amended PCRA petition. After the hearing,
the court issued an order detailing the same. Thereafter, Appellant filed pro
se two “legal letters,” a motion for transcripts, and a motion to declare the
case complex, the last of which was granted. While Appellant did not file an
amended PCRA petition, he did set forth additional allegations in his legal
letters. The Commonwealth submitted its answer, wherein it argued that
Appellant’s claims raised in the letters were either insufficiently pled or
meritless. Appellant then submitted several other pro se filings, including an
amended PCRA petition reiterating his earlier arguments.
On March 3, 2021, the PCRA court dismissed the amended PCRA petition
without holding a hearing or issuing notice of its intent to dismiss the petition
pursuant to Pa.R.Crim.P. 907. This appeal followed. At Appellant’s request,
the PCRA court appointed counsel for Appellant. Appointed counsel filed a
Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. In
the concise statement, counsel raised several claims, including an allegation
that the PCRA court erred in failing to issue pre-dismissal notice pursuant to
Rule 907. Thereafter, the PCRA court submitted its Rule 1925(a) opinion, in
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which it explained that it had issued Rule 907 notice, but for unknown reasons,
the document was not docketed or served on the parties. The PCRA court
requested that its order dismissing Appellant’s PCRA petition be vacated, and
the case remanded for further proceedings.
On appeal, Appellant claims, inter alia, that the PCRA court erred in
failing to provide him with Rule 907 notice prior to dismissing his petition.
See Appellant’s brief at 2.
We begin with a discussion of the pertinent legal principles. Our “review
of a PCRA court’s decision is limited to examining whether the PCRA court’s
findings of fact are supported by the record, and whether its conclusions of
law are free from legal error.” Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015) (quoting Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.
2011)). “We grant great deference to the factual findings of the PCRA court
and will not disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.”
Commonwealth v. Dozier, 208 A.3d 1101, 1103 (Pa.Super. 2019) (quoting
Commonwealth v. Brenner, 147 A.3d 915, 919 (Pa.Super. 2016)).
“[W]here the petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.” Commonwealth v. Pew, 189 A.3d
486, 488 (Pa.Super. 2018) (citation omitted). Finally, we “may affirm a PCRA
court’s decision on any grounds if the record supports it.” Commonwealth
v. Smith, 194 A.3d 126, 132 (Pa.Super. 2018) (citation omitted).
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Appellant alleges that the PCRA court erred in dismissing his PCRA
petition without first serving him with Rule 907 notice. The PCRA court agrees
that due to an “apparent breakdown in the administrative process,” the Rule
907 notice was never filed or served on Appellant. See PCRA Court’s Opinion,
5/24/21, at 3. Since Appellant did not receive this order, the PCRA court
requests that we vacate the order dismissing the PCRA petition and remand
the case so that Appellant can file a counseled Amended PCRA petition. Id.We agree that a remand is necessary.
It is well settled that the notice requirement of Rule 907 is mandatory:
If the judge is satisfied from [his or her] review that there are no
genuine issues concerning any material fact and that the
defendant is not entitled to post-conviction collateral relief, and
no purpose would be served by any further proceedings, the judge
shall give notice to the parties of the intention to dismiss the
petition and shall state in the notice the reasons for the dismissal.
Pa.R.Crim.P. 907(1) (emphasis added). See also Commonwealth v. Vo,
235 A.3d 365, 371-72 (Pa.Super. 2020). Non-compliance with Rule 907
requires vacatur of the order of dismissal unless the petitioner waives the
claim by failing to raise it on appeal. See Vo, supra at 372; see also
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013) (stating the
“failure to challenge the absence of a Rule 907 notice constitutes waiver”).
Our review of the record confirms that the Rule 907 notice was never
docketed or served on Appellant. Further, Appellant preserved this issue by
raising it in his concise statement. Accordingly, we vacate the order
dismissing Appellant’s PCRA petition and remand for the PCRA court to
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properly issue Rule 907 notice, which the PCRA court shall issue within twenty
days of this decision. See Vo, supra at 372. Appellant “may respond to the
proposed dismissal within twenty days of the date of the notice,” as provided
in Rule 907(1). Id. at 372-73. The PCRA court shall then proceed accordingly.
Given our resolution of this issue, we need not address the remaining appellate
issues raised by Appellant.
Order vacated. Case remanded with instructions. Appellant’s
applications for relief denied.2 Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2022
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2 During the pendency of this appeal, Appellant filed multiple pro se
applications for relief seeking to add various issues to his appellate brief,
including claims of PCRA counsel ineffectiveness. Given our resolution of
Appellant’s first issue, we deny the applications as moot. However, we note
that Appellant is free to pursue these claims in the PCRA court, as Rule 907
notice gives Appellant the opportunity to “alert the PCRA court of a perceived
error [and] to object to counsel’s effectiveness at the PCRA level.”
Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.Super. 2015).
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