Com. v. Antill, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROCKY WILLIAM ANTILL :
:
Appellant : No. 545 WDA 2021
Appeal from the PCRA Order Entered April 7, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008977-2016
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 19, 2021
Rocky William Antill appeals pro se from the trial court’s order dismissing
his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§
9541-9546, and granting PCRA counsel’s request to withdraw pursuant to the
dictates of Turner/Finley.1 After careful review, we vacate and remand.
Antill was charged with one count each of rape of a child (F-1),2 rape—
forcible compulsion (F-1),3 involuntary deviate sexual intercourse (IDSI)—
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 18 Pa.C.S. § 3121(c).
3 Id. at (a)(1).
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person less than 13 years of age (F-1),4 IDSI—child (F-1),5 IDSI—person less
than 16 years of age (M-2),6 aggravated indecent assault of child (F-1),7 and
indecent assault—person less than 16 years of age (M-2).8 The charges
stemmed from allegations that Antill had sexual intercourse with his minor
stepdaughter, A.C., fifteen times. N.T. Jury Trial, Vol. II, 7/6/17, at 86. After
a jury trial, held on March 8, 2017, the trial court declared a mistrial when the
jury could not reach a unanimous verdict.9 Antill was re-tried before a jury
on July 6, 2017.
At the retrial, A.C. testified that when she reported the incidents to her
mother, a fight broke out during which Antill told A.C.’s mother that she was
drunk and “teaming up on him” by fabricating the sexual assault story to get
him in trouble. Id. at 82. A.C. also testified that during a community event
she told people that the rape did not occur. Id. at 97. A.C., however, testified
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4 Id. at § 3126(a)(7).
5 Id. at § 3123(b).
6 Id. at (a)(7).
7 Id. at § 3125(b).
8 Id. at § 3126(a)(8).
9 Antill was originally charged with the above-mentioned crimes, in addition
to aggravated indecent assault without consent, 18 Pa.C.S. § 3125(a)(1),
corruption of minors, id. at § 6301(a)(1)(ii), recklessly endangering another
person (REAP), id. at § 2705, criminal solicitation, id. at § 902(a), and
unlawful contact with minor, id. at § 6318(a)(1). The jury found Antill not
guilty of REAP, but was unable to reach a unanimous verdict on the remaining
counts.
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that she truthfully reported the sexual assault and denied that anyone had
instructed her to fabricate the report. Id. at 98, 100, 119.
Defense witness, Dylan Ellison, testified that he was friends with A.C.
and attended a community festival in 2016, where A.C. was also in
attendance. Id., 7/7/17, at 133. Ellison testified that, at the festival, A.C.
told him that her mother had forced her to falsely report the rape allegations
to the police so that Antill would get arrested and A.C.’s mother could sell
Antill’s expensive sports items. Id. at 133-34.
On July 10, 2017, the jury found Antill guilty on all counts.10 On
December 11, 2017, the trial judge sentenced Antill to an aggregate sentence
of 200-450 months’ incarceration, followed by a 10-year probationary tail.
Antill filed timely post-sentence motions, challenging the weight of the
evidence, which the court denied on January 3, 2018. Antill filed a direct
appeal challenging the court’s rulings during voir dire and its evidentiary
rulings as well as the discretionary aspects of his sentence. On July 9, 2019,
our Court affirmed Antill’s judgment of sentence. Commonwealth v. Antill,
194 WDA 2018 (Pa. Super. filed July 9, 2018) (unpublished memorandum
decision). Antill filed an unsuccessful petition for allowance of appeal with the
Pennsylvania Supreme Court. See id., 269 WAL 2019 (Pa. filed Aug. 8,
2019); Id. 194 WDA 2018 (Pa. filed Feb. 12, 2020).
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10On retrial, the Commonwealth withdrew the crimes of unlawful contact with
a minor, aggravated indecent assault without consent, endangering the
welfare of children, corruption of minors, REAP, and criminal solicitation—
involuntary deviate sexual intercourse with a child.
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Antill filed the instant, timely pro se PCRA petition on January 10, 2021.
Antill’s petition included the following grounds for relief: newly-discovered
exculpatory evidence; a Brady11 violation; and ineffective assistance of
counsel.12 See Pro Se PCRA Petition, 1/10/21, at 4-21. The court appointed
PCRA counsel, Robert Carey, Esquire, who entered his appearance on
February 19, 2021. On March 16, 2021, Attorney Carey filed a “no-merit”
letter seeking to withdraw pursuant to Turner/Finley and declaring that “trial
counsel was effective and [Antill] does not have a valid after[-]discovered
evidence claim.” Turner/Finley “No-Merit” Letter, 3/16/21, at 1. On March
17, 2021, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Antill’s petition. Antill filed a pro se response to the Rule 907 notice on March
29, 2021. On April 7, 2021, the court dismissed Antill’s pro se petition without
a hearing and granted counsel’s motion to withdraw. Antill filed a timely pro
se notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal.
On appeal, Antill presents the following issues for our consideration:
(1) Whether the PCRA court erred in granting PCRA
counsel’s motion to withdraw where PCRA counsel’s
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11 Brady v. Maryland, 373 U.S. 83 (1963).
12 Antill raised two specific claims of trial counsel’s ineffectiveness: (1) counsel
failed to retain an expert witness to refute the Commonwealth’s expert
medical witness, Karen Morris, M.D.; and (2) counsel failed to present relevant
evidence “known and available to him at the time of trial” that supported the
victim’s financial motive to fabricate allegations against him and that
corroborated witness Ellison’s testimony. See Pro Se PCRA Petition, 1/10/21,
at 12-21.
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no-merit letter was deficient under the standards of
[]Turner and [] Finley.
(2) Whether the PCRA court erred in dismissing [Antill’s]
claim of ineffective assistance, relating to trial
counsel’s neglect of impeachment evidence, where
[Antill] established merit, unreasonableness, and
prejudice.
(3) Whether PCRA counsel was constitutionally ineffective
for failing to file an amended petition raising the
ineffectiveness of trial counsel, relating to trial
counsel’s neglect of impeachment evidence.
(4) Whether the PCRA court erred in dismissing [Antill’s]
claim under Brady[,] where the prosecution failed to
disclose extrajudicial statements by a prosecution
witness that the witness had fabricated the allegations
against [Antill].
(5) Whether the PCRA court erred in dismissing [Antill’s]
PCRA petition without a hearing where the PCRA
petition presented claims raising genuine issues of
material fact.
Appellant’s Brief, at 4.
On appeal from the dismissal of a PCRA petition, this court must
determine whether the post-conviction court’s findings were supported by the
record and whether the court’s order is otherwise free of legal error.
Commonwealth v. Blackwell, 647 A.2d 915 (Pa. Super. 1994). The findings
of the post-conviction court will not be disturbed unless they have no support
in the record. Id. Finally, “a PCRA court’s credibility determinations are
binding upon an appellate court so long as they are supported by the record.”
Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation
omitted).
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In his first issue on appeal, Antill claims that the PCRA court improperly
granted PCRA counsel’s motion to withdraw where counsel’s Turner/Finley
no-merit letter was deficient. Specifically, Antill claims that PCRA counsel
failed to include, in his no-merit letter, Antill’s ineffectiveness claim regarding
“trial counsel’s failure to present evidence in possession of the defense that
would have corroborated the testimony of defense witness Dylan Ellison.” Pro
Se Rule 907 Response, 4/7/21, at 1-2; see also Appellant’s Brief, at 40.13
Pennsylvania Rule of Criminal Procedure 904 sets forth a PCRA
petitioner’s right to assistance of counsel for his or her first PCRA petition;
once counsel is appointed, counsel must either amend the petitioner’s pro se
petition or seek to withdraw from representation by complying with the
mandates of Turner/Finley. Commonwealth v. Cherry, 155 A.3d 1080,
1082 (Pa. Super. 2017). “If appointed counsel fails to take either of these
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13 In his brief, Antill argues that there was no objectively reasonable basis for
PCRA counsel not to include his ineffectiveness claim in the no-merit letter
and that actual prejudice resulted from PCRA counsel’s error. See Appellant’s
Brief, at 42. In his petition, Antill alleged that trial counsel “failed to elicit or
present . . . evidence that [A.C.’s mother] and maternal aunt [] did, within
mere days of [Antill’s] arrest, make unauthorized withdrawals from [Antill’s]
bank account, depleting the account of an estimated seven-thousand five
hundred dollars ($7,500.00), and effectuated [an] unauthorized sale of
[Antill’s] collection of sports memorabilia, valued in excess of five-thousand
dollars ($5,000.00).” Pro Se PCRA Petition, 1/10/21, at 17-18. Antill claims
that this evidence would have provided “overt [proof] of a financial motive to
contrive and perpetuate false claims against” him, “implicates the credibility
of these witnesses[,]” and “corroborate[s] the testimony of defense witness[,]
D[ylan] E[llison.]” Id.-6-
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steps, our courts have not hesitated to find that the petition was effectively
uncounseled.” Id. at 1083.
In Commonwealth v. Freeland, 106 A.3d 768 (Pa. Super. 2014), our
Court reiterated that:
The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of
the record by competent counsel before a PCRA court or
appellate court can authorize an attorney’s withdrawal. The
necessary independent review requires counsel to file a “no-
merit” letter detailing the nature and extent of his review
and list each issue the petitioner wishes to have
examined, explaining why those issues are meritless.
The PCRA court, or an appellate court if the no-merit letter
is filed before it, see Turner, supra, then must conduct its
own independent evaluation of the record and agree with
counsel that the petition is without merit. See
[Commonwealth v.] Pitts, [] 981 A.2d 875, 876 ([Pa.]
2009)[.]
In Commonwealth v. Friend, [] 896 A.2d 607 ([Pa.
Super.] 2006)[,] abrogated in part by Pitts, supra, this
Court imposed additional requirements on counsel that
closely track the procedure for withdrawing on direct appeal.
Pursuant to Friend, counsel is required to
contemporaneously serve upon his client his no-merit letter
and application to withdraw along with a statement that if
the court granted counsel’s withdrawal request, the client
may proceed pro se or with a privately retained attorney.
Though Chief Justice Castille noted in Pitts that this Court
is not authorized to craft procedural rules, the Court did not
overturn this aspect of Friend[,] as those prerequisites did
not apply to the petitioner in Pitts. See Pitts, supra at
881 (Castille, C.J. concurring).
After the decision in Pitts, this Court held in
Commonwealth v. Widgins, [] 29 A.3d 816 ([Pa. Super.]
2011), that the additional procedural requirements of
Friend were still applicable during collateral review.
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Commonwealth v. Rykard, [] 55 A.3d 1177, 1184 ([Pa. Super.]
2012)[.]
Id. at 774-75 (emphasis added).
The Commonwealth acknowledges that one of the requirements to
withdraw from representing a PCRA petitioner is listing, in a no-merit letter,
each issue the petitioner wished to have reviewed. Appellee’s Brief, at 10.
Case law has been clear that this is a prerequisite to a trial court permitting
PCRA counsel withdrawal. Recognizing that PCRA counsel failed to list one of
Antill’s PCRA claims in his no-merit letter, and the fact that the court permitted
counsel to withdraw despite this omission, the Commonwealth “defers to this
Court to determine whether the PCRA court correctly allowed counsel to
withdraw.” Appellee’s Brief, at 10.
After careful consideration, we decline to overlook counsel’s omission in
light of established case law on the proper collateral withdrawal procedure and
the precept that PCRA counsel seeking to withdraw “must review the case
zealously.” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super.
2016) (citation omitted). See Commonwealth v. Kelsey, 206 A.3d 1135,
1139 (Pa. Super. 2019) (“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.”). See also
Commonwealth v. Karanicolas, 836 A.2d 940, 945-47 (Pa. Super. 2003);
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Commonwealth v. Glover, 738 A.2d 460, 464-65 (Pa. Super. 1999);
Commonwealth v. Mosteller, 633 A.2d 615 (Pa. Super. 1993).14
Accordingly, because counsel’s no-merit letter fails to comply with the
Supreme Court’s mandate in Turner, as explained by this Court in Finley, we
must vacate the PCRA court’s order dismissing Antill’s PCRA petition and
granting counsel’s petition to withdraw. See Kelsey, supra at 1140 (where
counsel’s no-merit letter fails to discuss all issues raised by petitioner in first
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14 We are also mindful of our Supreme Court’s recent decision,
Commonwealth v. Bradley, 2021 Pa. LEXIS 3819 (Pa. filed Oct. 20, 2021),
that recognized the need to enact a “more appropriate mechanism for the
enforcement of effective assistance of counsel in proceedings under the
[PCRA].” Id. at *1. In Bradley, the Court adopted a new procedure whereby
PCRA petitioners could raise claims of PCRA counsel’s ineffectiveness in a
collateral appeal, after a PCRA court has denied relief and the petitioner either
has obtained new counsel or is acting pro se. Id. In reaching its holding, the
Court “scrutinized” the procedure behind Rule 907, noting that the rule is
silent on ineffective assistance of PCRA counsel or claim preservation and the
burden that is placed on a pro se petitioner if he or she is required to timely
respond under Rule 907 with such claims. Id. at *43, *46.
Instantly, the Commonwealth states that on April 7, 2021, Antill filed a second
pro se response to the court’s Rule 907 notice. See Appellee’s Brief, at 3.
Notably, this is the same day that the court’s order dismissing Antill’s PCRA
petition and granting PCRA counsel’s petition to withdraw was filed. However,
Antill’s second Rule 907 response is not included in the certified record on
appeal. In addition, we do not know when Antill received notice of the court’s
intent to dismiss his petition—thus, we cannot establish when the 20-day Rule
907 clock started ticking. See Pa.R.Crim.P. 907(1) (“The defendant may
respond to the proposed dismissal within 20 days of the date of the notice.”).
Moreover, even if twenty days had passed by the time Antill filed his second
response, under Bradley, Antill is not precluded from raising any PCRA
ineffectiveness claims in his current collateral appeal. See Commonwealth
v. Vo, 235 A.3d 365, 372 (Pa. Super. 2020) (Rule 907 response is opportunity
for petitioner to object to dismissal and alert PCRA court of perceived error,
permitting court to discern potential for amendment to petition).
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PCRA petition and explain why they lack merit, dismissal of petition without
requiring counsel file amended PCRA petition or adequate no-merit letter is
deprivation of right to counsel on petition). The trial court is directed to have
counsel fully comply with the dictates of Turner/Finley, including listing in
his no-merit letter each issue Antill raised in his pro se PCRA petition,15 with
a detailed explanation of why each issue is meritless, if he seeks withdrawal
upon remand.16
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.17
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15 We also direct the court, upon remand, to address whether Antill filed a
timely, second pro se Rule 907 notice, and, if so, instruct counsel to be mindful
of any issues raised in that response that should be addressed in his no-merit
letter and, thereafter, in any forthcoming Rule 1925(a) opinion by the trial
court.
16As our Court recognized in Kelsey, supra, even though the PCRA court
conducted an independent review of the claims it believed were asserted in
Antill’s pro se petition, the error here is not the sufficiency of the PCRA court’s
Rule 1925(a) opinion or whether the claims in Antill’s petition are meritorious.
206 A.3d at 1140. Rather, the error stems from the denial of assistance of
counsel. Id. (“Even where a pro se first PCRA petition appears on its face to
be meritless, the defendant is entitled to representation by counsel before that
determination is made.”) (citations omitted).
17Because we have determined that vacation and remand is necessary based
on Antill’s first issue on appeal, we need not reach his remaining issues.
Kelsey, supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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