Com. v. Lawrence, C.

J-S40014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER LAWRENCE :
:
Appellant : No. 1906 EDA 2021
Appeal from the PCRA Order Entered August 12, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008435-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER LAWRENCE :
:
Appellant : No. 1907 EDA 2021
Appeal from the PCRA Order Entered August 12, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008752-2013
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 09, 2023
Christopher Lawrence appeals from the order dismissing his first petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. We conclude that Lawrence’s PCRA counsel was per se
ineffective, and remand with instructions.
J-S40014-22
In the early morning hours of May 14, 2013, police reported to a
restaurant after hearing gunshots. The responding officers observed three
men with gunshot wounds. A witness, who had pulled up outside the
restaurant while driving a utility truck, observed three men running from the
scene. The witness later identified Lawrence from a photo array. Lawrence
challenged the witness’s identification through a motion to suppress, which
the trial court denied.
Following a jury trial at trial court docket number 8435-2013 (“No.
8435-2013”), Lawrence was convicted of one count each of attempted
murder, conspiracy, firearms not to be carried without a license and carrying
firearms on public streets in Philadelphia, and three counts each of aggravated
assault and robbery – inflict serious bodily injury.1 At trial court docket number
8752-2013 (“No. 8752-2013”), the trial court conducted a separate bench trial
and found Lawrence guilty of persons not to possess firearms.2
The trial court sentenced Lawrence to an aggregate term of 27½ to 55
years in prison. Lawrence filed a timely post-sentence motion at both dockets,
which was ultimately denied by operation of law.
On direct appeal, Lawrence raised several claims relating to the
discretionary aspects of his sentence. In its appellee’s brief, the
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1 See 18 Pa.C.S.A. §§ 901, 903, 6106(a)(1), 6108, 2702(a)(1), and
3701(a)(1)(i).
2 See 18 Pa.C.S.A. § 6105(a)(1).
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Commonwealth identified two additional sentencing issues: (1) the trial court
stated on the record its intention to merge the attempted murder and
aggravated assault convictions relating to the same victim but failed to do so
in its sentencing order; and (2) the trial court improperly applied the deadly
weapon used enhancement for the firearms convictions at No. 8435-2013.
This Court, agreeing with the Commonwealth’s arguments, vacated the
separate aggravated assault sentence and vacated the sentences for
Lawrence’s firearms convictions at No. 8435-2013. We affirmed the judgment
of sentence in all other respects. See Commonwealth v. Lawrence, 195
A.3d 963, 3539 MDA 2016 (Pa. Super. filed Aug. 1, 2018) (unpublished
memorandum). The Pennsylvania Supreme Court denied allowance of appeal.
See Commonwealth v. Lawrence, 197 A.3d 1173 (Pa. 2018).
On October 10, 2019, Lawrence filed, pro se, the instant timely PCRA
petition. Lawrence generally argued that an investigating detective offered
false testimony at trial; the search warrant was not supported by probable
cause; and the photo array through which a witness identified Lawrence was
unduly suggestive. Lawrence also claimed his trial counsel rendered ineffective
assistance and identified seven specific instances of alleged ineffectiveness.
The PCRA court appointed Robert J. Dixon, Esquire, as PCRA counsel.
Attorney Dixon filed an amended PCRA petition alleging ineffective assistance
of counsel for trial counsel’s failure to (1) litigate a pre-trial motion challenging
the validity of the search warrant for Lawrence’s property, which he alleged
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was not properly signed; and (2) file a post-trial motion challenging the denial
of Lawrence’s motion to suppress identification evidence. In response, the
Commonwealth filed a motion to dismiss.
After issuing appropriate notice pursuant to Pa.R.Crim.P. 907, the PCRA
court dismissed Lawrence’s PCRA petition without a hearing. Attorney Dixon
filed a timely notice of appeal at each docket number on Lawrence’s behalf. 3,4
On October 5, 2021, the PCRA court ordered Lawrence to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal within 21 days
of the date of the order. Lawrence, pro se, filed a Rule 1925(b) concise
statement on October 25, 2021, one day before the time for doing so expired.
Attorney Dixon did not file a concise statement on Lawrence’s behalf. There is
no indication that Attorney Dixon sought leave to withdraw from
representation. Attorney Dixon has since filed an appellate brief in this
matter.5
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3Attorney Dixon and the PCRA court both state that Lawrence filed the notice
of appeal pro se. See Appellant’s Brief at 6; PCRA Court Opinion, 11/30/21,
at 2 n.1.
4 This Court sua sponte consolidated Lawrence’s appeals for review.
5 In its Rule 1925(a) opinion, the PCRA court acknowledges that Lawrence
filed a pro se 1925(b) concise statement. However, the PCRA court did not
address the propriety of this procedure. Instead, the PCRA court concluded
that Lawrence waived his claims by failing to raise them in response to the
Pa.R.Crim.P. 907 notice. See PCRA Court Opinion, 11/30/21, at 3.
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As a preliminary matter, we must determine whether Lawrence’s claims
are preserved for review. Hybrid representation is not permitted in this
Commonwealth. See Commonwealth v. Hopkins, 228 A.3d 577, 580 (Pa.
Super. 2020). Therefore, pro se filings submitted while an appellant is
counseled are generally considered legal nullities. See id. However, this Court
has previously recognized attempts by appellants to protect their
constitutional right to appeal. See Commonwealth v. Williams, 151 A.3d
621, 624 (Pa. Super. 2016) (accepting appellant’s pro se notice of appeal as
timely, even where he was represented by counsel, to protect his
constitutional right, and deeming the trial court’s failure to forward the pro se
filing to this Court a breakdown in operations); see also Commonwealth v.
Muhammed, 219 A.3d 1207, 1210 n.4 (Pa. Super. 2019) (“[A] counseled
defendant may act on his own behalf to protect important rights where counsel
remains technically attached to the case, but is no longer serving his client’s
interest.”). In contrast, this Court does not accept pro se court-ordered Rule
1925(b) concise statements from represented appellants. See
Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (“Moreover, appellant
was represented by counsel on appeal, so his pro se Rule 1925(b) statement
was a legal nullity.”).
Counsel’s failure to file a court-ordered Rule 1925(b) concise statement
constitutes per se ineffective assistance. See Commonwealth v. Burton,
973 A.2d 428, 432 (Pa. Super. 2009) (en banc). Because Attorney Dixon was
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counsel of record and did not withdraw from representation, his failure to file
a Rule 1925(b) concise statement on Lawrence’s behalf constituted per se
ineffective assistance. Compounding Attorney Dixon’s ineffectiveness, the
appellate brief filed by Attorney Dixon fails to adequately develop Lawrence’s
claims for review.
Based upon the foregoing, we remand this case to the PCRA court with
the directive to remove Attorney Dixon. The PCRA court shall also appoint
Lawrence new counsel to assist him within 21 days of the date the certified
record is returned to the PCRA court. New counsel shall enter his or her
appearance and file a Rule 1925(b) concise statement with the PCRA court
within 21 days of the date of appointment, unless this time is otherwise
extended by the PCRA court. The PCRA court may file a supplemental Rule
1925(a) opinion as necessary to address the claims raised by new counsel.
Case remanded with instructions. Panel jurisdiction retained.
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