Com. v. Rosado, F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FRANK ROSADO :
:
Appellant : No. 2517 EDA 2019
Appeal from the PCRA Order Entered August 12, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1008191-1989
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: November 25, 2020
Frank Rosado (“Rosado”) appeals, pro se, from the Order dismissing his
second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 Because the PCRA court failed to issue notice of its intent to
dismiss under Pa.R.Crim.P. 907(a) prior to issuing its Order, we vacate and
remand.
On July 5, 1990, Rosado was convicted of one count of first-degree
murder, and two counts each of recklessly endangering another person and
possession of an instrument of crime, for the killing of Luis Diaz in Philadelphia
in September 1989. The trial court sentenced Rosado to an aggregate term
of life in prison. This Court affirmed Rosado’s judgment of sentence, and the
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1 42 Pa.C.S.A. §§ 9541-9546.
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Pennsylvania Supreme Court denied allowance of appeal. See
Commonwealth v. Rosado, 617 A.2d 392 (Pa. Super. 1992) (unpublished
memorandum), appeal denied, 634 A.2d 1115 (Pa. 1993).
On March 22, 1999, Rosado filed his first, pro se, PCRA Petition. Rosado
was appointed counsel, who filed a Turner/Finley2 no-merit letter. The PCRA
court granted counsel leave to withdraw and dismissed Rosado’s Petition. This
Court subsequently affirmed the dismissal. See Commonwealth v. Rosado,
3414 EDA 2001 (Pa. Super. 2002) (unpublished memorandum).
On December 9, 2016, Rosado filed the instant, pro se, PCRA Petition.
In his Petition, Rosado alleged that in October 2016, he received exculpatory
evidence in the form of an Affidavit from an eyewitness. On August 12, 2019,
the PCRA court issued an Order dismissing Rosado’s Petition as untimely filed,
pursuant to section 9545(b). Two days later, on August 14, 2019, the PCRA
court issued a Notice, pursuant to Pa.R.Crim.P. 907, advising Rosado of its
intent to dismiss his Petition without a hearing.
Rosado filed a timely Notice of Appeal. Although the trial court did not
order Rosado to file a Pa.R.A.P. 1925(b) concise statement of matters
complained of on appeal, the PCRA court did issue an Opinion. In its Opinion,
the PCRA court requested that this Court remand Rosado’s appeal, as 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 had inadvertently issued its Order dismissing Rosado’s Petition
prior to issuing the Rule 907 Notice of its intent to do so. Trial Court Opinion,
12/6/19, at 1-2.3, 4
On appeal, Rosado argues the following:
Did the PCRA Court [d]ismiss [Rosado]’s [PCRA] Petition without
serving [Rosado] with a timely Notice of Intent to Dismiss
[pursuant to Pa.R.Crim.P. 907,] and/or [d]enying [Rosado] his
mandated right to file [o]bjections to the [Rule] 907 [Notice], in
violation of Finely [(sic)]?
Brief for Appellant at 4.
Our standard of review for the denial of PCRA relief is well settled.
“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. Hanible, [] 30 A.3d 426, 438 ([Pa.]
2011) (citing Commonwealth v. Colavita, [] 993 A.2d 874, 886
([Pa.] 2010)). We view the findings of the PCRA court and the
evidence of record in a light most favorable to the prevailing party.
Id. With respect to the PCRA court’s decision to deny a request
for an evidentiary hearing, or to hold a limited evidentiary hearing,
such a decision is within the discretion of the PCRA court and will
not be overturned absent an abuse of discretion. See
Commonwealth v. Reid, [] 99 A.3d 470, 485 ([Pa.] 2014).
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). Pennsylvania
Rule of Criminal Procedure 907 provides, in pertinent part, as follows:
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3In its Opinion, the trial court characterizes the reason for this discrepancy as
an “administrative error.” Trial Court Opinion, 12/6/19, at 2.
4 We note that the Commonwealth, in its brief, agrees with the PCRA court’s
position, and requests that this Court remand the matter for the proper
issuance of a Rule 907 notice to which Rosado may respond. Commonwealth’s
Brief at 3 (unnumbered).
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the judge shall promptly review the petition, any answer by the
attorney for the Commonwealth, and other matters of record
relating to the defendant’s claim(s). If the judge is satisfied from
this 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. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
judge thereafter shall order the petition dismissed, grant leave to
file an amended petition, or direct that the proceedings continue.
Pa.R.Crim.P. 907(1). A PCRA court’s compliance with this rule is mandatory.
See Commonwealth v. Feighery, 661 A.2d 437, 439 (Pa. Super. 1995)
(stating that “[i]t is, of course, clear that the notice requirement of the
intention to dismiss, is mandatory (‘the [trial court] shall (give notice and)
shall state (the reasons)’ [for the dismissal]”)) (emphasis in original).
In this case, the PCRA court issued its Order dismissing Rosado’s Petition
on August 12, 2019, without first filing a Rule 907 Notice of Intent.
Accordingly, the PCRA court failed to comply with the mandatory dictates of
Rule 907, and we therefore vacate its Order dismissing Rosado’s Petition.5
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5 We acknowledge this Court’s prior holdings that a PCRA petitioner is not
automatically entitled to reversal on the basis of a PCRA court’s failure to
provide notice under Rule 907 when the underlying PCRA petition is untimely.
See Commonwealth v. Purcell, 749 A.2d 911, 917 n.7 (Pa. 2000) (refusing
to reverse the PCRA court’s order, even when the PCRA court failed to give
the petitioner notice, when this Court’s independent review determined that
the petitioner had failed to invoke one of the timeliness exceptions in the
PCRA). However, because the PCRA court and the Commonwealth agree that
this matter should be remanded, we will vacate the PCRA court’s Order, and
remand with instructions to comply with the dictates of Rule 907.
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See Pa.R.Crim.P. 907; Feighery, supra (remanding the dismissal of a PCRA
petition where the appellant did not receive notice prior to the issuance of the
order dismissing the petition). On remand, the PCRA court is directed to
comply with Rule 907 if it intends to dismiss Rosado’s Petition without a
hearing.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/20
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