Com. v. Jefferson, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYRONE JEFFERSON :
:
Appellant : No. 1497 EDA 2019
Appeal from the PCRA Order Entered April 18, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008441-2012
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED JULY 24, 2020
Appellant, Tyrone Jefferson, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We vacate and
remand for further proceedings.
The relevant facts and procedural history of this case are as follows. On
September 16, 2013, a jury convicted Appellant of third-degree murder,
conspiracy, and possessing instruments of crime. The court sentenced
Appellant on October 28, 2013, to an aggregate term of 25 to 54 years’
imprisonment. This Court affirmed Appellant’s judgment of sentence on
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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August 18, 2015, and our Supreme Court denied allowance of appeal on
December 1, 2015. See Commonwealth v. Jefferson, 131 A.3d 95
(Pa.Super. 2015) (unpublished memorandum), appeal denied, 633 Pa. 776,
126 A.3d 1283 (2015).
On November 14, 2016, Appellant timely filed a pro se PCRA petition.
In his petition, Appellant alleged the trial court issued an erroneous jury
instruction, where the court informed the jury that if it did not unanimously
agree that Appellant was guilty of first-degree murder, then third-degree
murder would be the only proper verdict. Appellant also alleged prosecutorial
misconduct based on some of the District Attorney’s remarks during closing
arguments. Appellant further alleged, generally, that claims of a false jury
instruction, prosecutorial misconduct, and ineffective assistance of counsel
were matters Appellant intended to raise before the PCRA court.
The court appointed PCRA counsel, who filed a Turner/Finley “no-
merit” letter2 and request to withdraw on October 5, 2017. In his “no-merit”
letter, counsel asserted that Appellant’s claim regarding the improper jury
instruction lacked merit and that Appellant’s claim of prosecutorial misconduct
was previously litigated on direct appeal. Counsel further said that Appellant’s
reference to the ineffective assistance of counsel was nothing more than a
boilerplate allegation that did not satisfy the criteria for ineffectiveness.
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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Nevertheless, the court found that PCRA counsel had failed to
communicate with Appellant prior to filing the Turner/Finley letter, so the
court deemed the letter insufficient and ordered counsel to amend it after
discussions with Appellant.
Meanwhile, on December 22, 2017, Appellant filed a pro se response to
counsel’s Turner/Finley letter, asking PCRA counsel to file an amended
petition raising: (1) direct appeal counsel’s failure to raise on direct appeal the
court’s erroneous jury instruction; and (2) whether the trial court erred by
refusing to grant a mistrial due to the District Attorney’s allegedly improper
remarks during closing arguments.
Counsel filed an amended PCRA petition on Appellant’s behalf on May
31, 2018. Notably, the sole issue counsel included was trial counsel’s
ineffectiveness in failing to request a mistrial after the court overruled
counsel’s objection to the prosecutor’s allegedly improper remarks during
closing arguments.
The court issued notice of its intent to dismiss the petition without a
hearing per Pa.R.Crim.P. 907, on September 28, 2018. Although still
represented by counsel, Appellant filed a pro se response on November 20,
2018. Appellant claimed that he was unable to respond to the Rule 907 notice
within 20 days because he had not received the amended PCRA petition from
counsel. Consequently, Appellant asked the court to compel production of the
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amended PCRA petition.3
On December 7, 2018, Appellant filed another pro se response to Rule
907 notice. In this filing, Appellant asked the court for permission to amend
his PCRA petition to raise additional issues and to clarify issues already raised.
Appellant maintained that he has had no communication with PCRA counsel
since October 5, 2017, when counsel filed the Turner/Finley letter.
Appellant filed a third pro se response to Rule 907 notice on April 1,
2019, seeking to supplement some of his PCRA claims.4 In this filing,
Appellant expressly raised direct appeal counsel’s failure to argue on direct
appeal the issue concerning the allegedly erroneous jury instruction.
The court denied PCRA relief on April 18, 2019. The order stated that
PCRA counsel shall remain appellate counsel if Appellant pursued an appeal,
unless Appellant chose to retain private counsel. Appellant timely filed a
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3The certificate of service attached to counsel’s May 31, 2018 amended PCRA
petition confirms only that counsel served the amended petition on the
Philadelphia County District Attorney’s Office by e-filing. The certificate of
service does not indicate that counsel served Appellant with the amended
petition.
4 The record does not indicate whether the court forwarded any of Appellant’s
pro se filings to PCRA counsel, who was still counsel of record. See
Pa.R.Crim.P. 576(A)(4) (stating in any case in which defendant is represented
by attorney, if defendant submits written motion, notice or document that has
not been signed by defendant’s attorney, clerk of courts shall accept it for
filing and forward copy of time-stamped document to defendant’s attorney
and attorney for Commonwealth within 10 days of receipt). The PCRA court
took no action to address any of the complaints/requests raised in Appellant’s
pro se filings.
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counseled notice of appeal on May 17, 2019. On May 28, 2019, the court
ordered Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on June 17, 2019.5
Appellant raises one issue for our review:
Whether the court improperly influenced the jury’s
prerogative by telling them if they could not agree on the
charge of first-degree murder because of a difference in
opinion then third-degree murder would obviously be the
only proper verdict[?]
(Appellant’s Brief at 4).
As a preliminary matter, Pennsylvania Rule of Criminal Procedure 904
provides, in pertinent part:
Rule 904. Entry of Appearance and Appointment of
Counsel; In Forma Pauperis
* * *
(C) Except as provided in paragraph (H), when an
unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel,
the judge shall appoint counsel to represent the defendant
on the defendant’s first petition for post-conviction collateral
relief.
* * *
(F) When counsel is appointed,
* * *
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5 In his counseled Rule 1925(b) statement, Appellant reiterated his claim that
the court issued an erroneous jury instruction, but did not raise this issue in
the context of the ineffective assistance of direct appeal counsel. Appellant
also raised trial counsel’s ineffectiveness related to the underlying claim of
prosecutorial misconduct, as well as a sentencing issue.
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(2) the appointment of counsel shall be effective
throughout the post-conviction collateral proceedings,
including any appeal from disposition of the petition for
post-conviction collateral relief.
Pa.R.Crim.P. 904(C), (F)(2). This Court has stated:
Pursuant to the rules of criminal procedure and interpretive
case law, a criminal defendant has a right to representation
of counsel for purposes of litigating a first PCRA petition
through the entire appellate process. …
* * *
While the right to legal representation in the PCRA context
is not constitutionally derived, the importance of that right
cannot be diminished merely due to its rule-based
derivation. In the post-conviction setting, the defendant
normally is seeking redress for trial counsel’s errors and
omissions. Given the current time constraints of 42 Pa.C.S.
§ 9545, a defendant’s first PCRA petition, where the rule-
based right to counsel unconditionally attaches, may well be
the defendant’s sole opportunity to seek redress for such
errors and omissions. Without the input of an attorney,
important rights and defenses may be forever lost.
Commonwealth v. Robinson, 970 A.2d 455, 457-59 (Pa.Super. 2009) (en
banc). See also Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161
(1999) (explaining indigent petitioner has right to appointment of counsel to
assist in prosecuting first PCRA petition; where that right has been effectively
denied by action of court or counsel, petitioner is entitled to remand to PCRA
court for appointment of counsel to prosecute PCRA petition; remand serves
to give petitioner benefit of competent counsel at each stage of post-
conviction review); Commonwealth v. Williams, 167 A.3d 1 (Pa.Super.
2017) (holding PCRA counsel effectively abandoned appellant after PCRA
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court’s issuance of Rule 907 notice; given significant rights at issue,
appellant’s claims of abandonment, and detailed and layered issues on appeal,
best resolution of case is to vacate and remand for filing of new, counseled
amended PCRA petition on appellant’s behalf and for further proceedings).
Instantly, on November 14, 2016, Appellant timely filed his first PCRA
petition pro se. In his petition, Appellant alleged: (1) the jury instruction was
improper; and (2) the District Attorney committed prosecutorial misconduct.
Although Appellant mentioned the ineffective assistance of counsel, he did not
plead the required three prongs of that test.6 The court subsequently
appointed PCRA counsel, who filed a Turner/Finley letter, addressing the jury
instruction issue as a claim of trial court error (not in the context of
ineffectiveness) and concluding the prosecutorial misconduct claim was
previously litigated on direct appeal.
In response, Appellant filed a pro se letter on December 22, 2017,
specifically arguing the jury instruction issue in the context of direct appeal
counsel’s failure to raise it on direct appeal; as well as reiterating his claim
about prosecutorial misconduct. When counsel subsequently amended
Appellant’s PCRA petition on May 30, 2018, counsel omitted Appellant’s
principal complaint about direct appeal counsel’s ineffectiveness in relation to
the jury instruction issue, and instead argued only trial counsel’s
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6 See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
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ineffectiveness with respect to the prosecutorial misconduct claim.
Following the court’s entry of Rule 907 notice, Appellant filed three pro
se responses, in which Appellant complained: (1) he did not receive a copy of
counsel’s amended PCRA petition; (2) PCRA counsel effectively abandoned
him by failing to communicate with Appellant since the date on which counsel
filed the initial Turner/Finley letter; and (3) repeating his intent to raise,
inter alia, direct appeal counsel’s failure to challenge on direct appeal the
allegedly erroneous jury instruction. Neither PCRA counsel nor the PCRA court
responded to any of Appellant’s pro se filings.
Significantly, the sole issue counsel raised for Appellant in the current
appeal is whether the trial court issued an erroneous jury instruction by
informing the jury that if it did not unanimously agree that Appellant was
guilty of first-degree murder, then third-degree murder would be the only
proper verdict. As the Commonwealth accurately points out, however, this
issue, as framed by counsel as one of trial court error, would ordinarily be
waived for purposes of the PCRA because it could have been raised on direct
appeal. (See Commonwealth’s Brief at 6-8). See also 42 Pa.C.S.A. §
9543(a)(3) (explaining that to be eligible for relief, petitioner must plead and
prove allegation of error has not been previously litigated or waived); 42
Pa.C.S.A. § 9544(b) (stating that for purposes of this subchapter, issue is
waived if petitioner could have raised it but failed to do so before trial, at trial,
during unitary review, on appeal or in prior state post-conviction proceeding).
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Under these circumstances, however, the record discloses that PCRA
counsel effectively abandoned Appellant for, at least, the time period between
counsel’s filing of the amended PCRA petition, and counsel’s filing of the
current notice of appeal. The record confirms Appellant is indigent. Thus,
Appellant was entitled to appointment of counsel throughout all stages of
litigating his first PCRA petition. See Pa.R.Crim.P. 904(C), (F)(2); Kenney,
supra; Robinson, supra; Williams. Notwithstanding Appellant’s repeated
express request to raise a claim of direct appeal counsel’s failure to challenge
the allegedly erroneous jury instruction, counsel never advanced this issue on
Appellant’s behalf. Even if counsel thought such a claim was frivolous, he
could have filed another Turner/Finley letter explaining why. Instead,
counsel’s only attempt to raise this claim on Appellant’s behalf was as trial
court error. As previously stated, by raising this claim as trial court error,
counsel advanced nothing more than a waived issue for purposes of the PCRA.
See 42 Pa.C.S.A. §§ 9543(a); 9544(b).
Further, the record supports Appellant’s contention that he did not
receive a copy of counsel’s amended PCRA petition, as demonstrated in the
certificate of service, and that counsel failed to communicate with Appellant
since October 2017, as evidenced by the lack of any supplemental filings by
counsel following Appellant’s three pro se responses to Rule 907 notice.
Given the significant rights at issue and Appellant’s valid claims of
abandonment, the best resolution of this case is to vacate and remand for the
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appointment of new PCRA counsel, who shall promptly communicate with
Appellant about the issues he wants to raise and file a new, amended PCRA
petition on Appellant’s behalf. See Kenney, supra (holding reviewing court
is error-correcting court and cannot evaluate claim that PCRA court did not
consider;7 Superior Court has no original jurisdiction in PCRA proceedings; if
record is insufficient to adjudicate allegations, case should be remanded for
further inquiry); Williams, supra. Accordingly, we vacate and remand for
further proceedings.
Order vacated; case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/20
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7 Although the PCRA court considered Appellant’s claim that the trial court
issued an erroneous jury instruction, it did not evaluate that claim in the
context of direct appeal counsel’s ineffectiveness. “Our precedent has made
abundantly clear that a claim of ineffectiveness of counsel is distinct from the
underlying claim of trial court error.” Commonwealth v. Paddy, 609 Pa.
272, 303 n.11, 15 A.3d 431, 449 n. 11 (2011). See also Commonwealth
v. Collins, 585 Pa. 45, 888 A.2d 564 (2005) (holding Sixth Amendment claim
of ineffectiveness raises distinct legal ground for purposes of state PCRA
review and PCRA court should recognize ineffectiveness claims as distinct
issues and review them under three-prong ineffectiveness standard
announced in Pierce). Because PCRA counsel did not present Appellant’s
claim in the context of ineffectiveness before the PCRA court, the PCRA court
did not conduct the requisite analysis under Pierce.
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