Com. v. Gregory, N.

J-S34008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NORMAN E. GREGORY :
:
Appellant : No. 317 WDA 2021
Appeal from the PCRA Order Entered February 5, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007930-1982
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
JUDGMENT ORDER BY DUBOW, J.: FILED: October 14, 2022
Appellant Norman E. Gregory appeals from the February 5, 2021 Order
entered in the Allegheny County Court of Common Pleas that denied his pro
se serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46. Because Appellant was represented by counsel when he
filed his petition pro se, the petition was a legal nullity and, thus, the PCRA
court erred in addressing it. Accordingly, we vacate the court’s Order.
A detailed factual and procedural history is unnecessary to our
disposition. Briefly, on March 2, 1983, Appellant pleaded nolo contendre to
Rape and related charges. On February 15, 1984, the trial court sentenced
Appellant to an aggregate term of 17½ to 50 years’ imprisonment. Appellant
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* Retired Senior Judge assigned to the Superior Court.
J-S34008-22
did not file a direct appeal but proceeded to file numerous PCRA petitions,
which the PCRA court dismissed.
Relevant to this appeal, on August 22, 2016, the PCRA court appointed
Suzanne M. Swan, Esquire, to represent Appellant in his PCRA proceedings.
On April 3, 2020, Appellant filed the instant pro se PCRA petition. On August
20, 2020, the PCRA court issued a Pa.R.Crim.P. Rule 907 Notice to Dismiss
the petition without a hearing and on February 5, 2021, the PCRA court
dismissed the petition. Our review of the docket reveals that the PCRA court
served Appellant’s counsel with a copy of the above-mentioned pro se filings,
but counsel failed to file anything on Appellant’s behalf.
On March 5, 2021, Appellant filed a pro se Notice of Appeal to this Court.
In response, on May 13, 2021, the PCRA court ordered Appellant to file a
Pa.R.A.P. 1925(b) statement within 21 days. Appellant failed to do so. On
November 11, 2021, the PCRA court issued an Opinion concluding that
Appellant had waived all issues on appeal.1
On March 4, 2021, this Court issued an order acknowledging that the
PCRA court had appointed counsel to represent Appellant and had not granted
counsel permission to withdraw. Accordingly, we directed the Prothonotary to
enter counsel’s appearance in this Court. Counsel subsequently failed to file
a brief on behalf of Appellant and on February 7, 2022, we remanded this case
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1 Our review of the docket reveals that that PCRA court did not serve
Appellant’s counsel with a copy of Appellant’s pro se Notice of Appeal or the
Rule 1925(b) order.
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to the PCRA court for 30 days for a determination as to whether counsel had
abandoned Appellant. We also instructed the PCRA court to take further action
as required to protect Appellant’s right to appeal. In response, on April 4,
2022, the PCRA court issued an Order of Court that found that counsel had
not abandoned Appellant; rather, counsel believed after discussion with
Appellant that Appellant did not wish to file a notice of appeal. Order, 4/2/22,
at 1-2. On July 28, 2022, Appellant’s counsel filed a Turner/Finley “no-
merit” brief2 and an Application for Leave to Withdraw as Counsel with this
Court.
As an initial matter, we must address the fact that Appellant filed the
instant pro se PCRA petition while still represented by counsel. Our Supreme
Court has explicitly extended Pennsylvania’s prohibition against hybrid
representation to PCRA proceedings. Commonwealth v. Pursell, 724 A.2d
293, 302 (Pa. 1999). When an appellant is represented by counsel, it is error
for a PCRA court to accept a pro se PCRA petition as a valid pleading and
consider the merits thereof. Commonwealth v. Mojica, 242 A.3d 949, 953
(Pa. Super. 2020); Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super.
2011). Rather, the PCRA court should consider the filing to be a legal nullity.
Mojica, 242 A.3d at 953.
Instantly, because Appellant was represented by counsel, the trial court
erred when it considered the merits of Appellant’s pro se PCRA petition. The
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2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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PCRA court should have treated the filing as a legal nullity. Accordingly, we
vacate the court’s February 5, 2021 order denying PCRA relief.3, 4
Order vacated. Application for Leave to Withdraw as Counsel denied.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2022
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3In light of our disposition, we deny counsel’s Application for Leave to
Withdraw as Counsel without prejudice to seek relief before the PCRA court.
4 We note that because Appellant’s pro se PCRA petition is a legal nullity, he
is without prejudice to re-file a counseled PCRA petition raising the same
claims, or a pro se PCRA petition raising the same claims if the PCRA court
permits counsel to withdraw.
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