J-S58024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

THOMAS EUGENE SKARIOT, 

 Appellant No. 235 WDA 2014 

Appeal from the PCRA Order Entered January 6, 2014

In the Court of Common Pleas of Washington County 

Criminal Division at No(s): CP-63-CR-0000584-2011 

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

 

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 23, 2014 

 Appellant, Thomas Eugene Skariot, appeals pro se from the trial 

court’s January 6, 2014 order denying his petition for relief filed pursuant to 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After 

careful review, we are compelled to vacate that order and remand for the 

appointment of new counsel. 

According to the PCRA court’s Pa.R.A.P. 1925(a) opinion, Appellant 

entered a negotiated guilty plea on February 2, 2012, to the charge of 

aggravated assault. The court summarized the facts underlying Appellant’s 

offense as follows: 

 The Affidavit of Probable Cause avers that an officer of the 

Pennsylvania State Police was dispatched to a residence located 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.
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in East Bethlehem Township for a report of a burglary and 

aggravated assault on January 13, 2011. He questioned the 

victim, Kenneth James Axton, while he was being treated for 

injuries. Axton informed the officer that he was sleeping on a 

couch when he awoke to [] Appellant[’s] striking him with a 

wooden baseball bat. Axton knew [] Appellant, and had received 

a cell phone call from Appellant earlier that day. During the call, 

[] Appellant stated that he intended to come to Axton’s 

residence and “[k]ill him.” During the ensuing altercation, Axton 

grabbed a knife and defended himself. Axton believed that he 

had stabbed [] Appellant. During the fight, Appellant obtained 

the knife from the victim, and Appellant used it to cut the hands 

of Axton. The arresting officer observed multiple lacerations and 

contusions to Axton’s head and face.

PCRA Court Opinion (PCO), 4/4/14, at 1-2 (citations to the record omitted). 

 On the same day Appellant pled guilty to aggravated assault, he was 

sentenced to the negotiated term of three to six years’ incarceration. The 

Commonwealth also waived any objection to Appellant’s being eligible for 

the Recidivism Risk Reduction Incentive (RRRI) program. Appellant did not 

file post-sentence motions or a direct appeal. 

 However, on October 5, 2012, Appellant filed a pro se PCRA petition 

presenting twenty claims, most of which involved allegations of ineffective 

assistance of trial counsel. Counsel was appointed, but rather than file an 

amended PCRA petition, counsel filed a petition to withdraw and a “no-merit” 

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), 

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On 

October 22, 2013, the court granted counsel’s petition to withdraw and filed 

a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s PCRA petition. 

Appellant filed a timely pro se response on November 1, 2013, averring that 
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his PCRA counsel was ineffective for filing an inadequate Turner/Finley nomerit letter. 

On January 6, 2014, the PCRA court issued an order dismissing 

Appellant’s petition. Appellant filed a notice of appeal on February 7, 2014, 

which the PCRA court properly deemed as timely, considering “the delay that 

can occur when inmates mail documents from State Correctional Facilities....” 

PCO at 2 n.3 (citing Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. 

Super. 1997) (holding that “prisoner mailbox rule” applies “to all appeals 

filed by prisoners proceeding pro se” and mandates that “a notice is deemed 

filed as of the date it is deposited in the prison mail system”) (citation 

omitted)). While the PCRA court did not order Appellant to file a Pa.R.A.P. 

1925(b) statement, it filed a Rule 1925(a) opinion on April 4, 2014. 

 On appeal, Appellant raises the following four questions for our review: 

1.) Was trial counsel ineffective, and [did he] demonstrate an 

abandonment of Appellant by failing to raise a prima facie case, 

acquire discovery, and by forcing a plea of guilty, and [was] 

PCRA counsel ineffective for failing to fully review the case and 

[Appellant’s] PCRA petition, and render a proper conclusion 

based on facts? 

2.) Was the plea of guilty coerced by counsel to cover up the 

abandonment of Appellant? 

3.) Is Appellant factually innocent of the charge of aggravated 

assault? 

4.) Was the trial court biased, and [did it] commit misconduct 

when a pre-formed judgement [sic] about the case was 

commented upon by the trial judge? 
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Appellant’s Brief at 3.1

Initially, we note that “[t]his Court’s standard of review from the grant 

or denial of post-conviction relief is limited to examining whether the lower 

court’s determination is supported by the evidence of record and whether it 

is free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 

1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 

1995)). 

In Appellant’s first issue, he alleges that both his trial counsel and his 

PCRA attorney rendered ineffective representation. 

[A] PCRA petitioner will be granted relief only when he proves, 

by a preponderance of the evidence, that his conviction or 

sentence resulted from the “[i]neffective assistance of counsel 

which, in the circumstances of the particular case, so 

undermined the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken place.” 

Generally, counsel’s performance is presumed to be 

constitutionally adequate, and counsel will only be deemed 

ineffective upon a sufficient showing by the petitioner. To obtain 

relief, a petitioner must demonstrate that counsel’s performance 

was deficient and that the deficiency prejudiced the petitioner. A 

petitioner establishes prejudice when he demonstrates “that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” ... [A] properly pled claim of ineffectiveness 

posits that: (1) the underlying legal issue has arguable merit; 

(2) counsel’s actions lacked an objective reasonable basis; and 

(3) actual prejudice befell the petitioner from counsel’s act or 

omission. 

____________________________________________ 

1

 We note that the Commonwealth has not filed a brief in this case. 
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Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations 

omitted). 

We will first address Appellant’s claims regarding PCRA counsel’s 

representation, “as Appellant is entitled to competent and diligent 

representation by counsel in his first PCRA petition.” Commonwealth v. 

Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (citations omitted). Appellant 

contends that his PCRA attorney filed an “incomplete” and “deficient” 

Turner/Finley no-merit letter because counsel “failed to review all [of the] 

issues raised in [] Appellant[’]s PCRA” petition. Appellant’s Brief at 11-12. 

Appellant also avers that counsel failed to conduct a “thorough investigation” 

of the record in this case, which violated her “ethical obligation[]” to 

“zealously defend” him.2

 Id. 

 In Turner, our Supreme Court “set forth the appropriate procedures 

for the withdrawal of court-appointed counsel in collateral attacks on 

criminal convictions[.]” Turner, 544 A.2d at 927. The traditional 

____________________________________________ 

2

 Appellant presented these assertions of PCRA counsel’s ineffectiveness in 

his timely-filed response to the PCRA court’s Rule 907 notice of its intent to 

dismiss. Thus, his claims are preserved for our review. See 

Commonwealth v. Pitts, 981 A.2d 875, 879 (Pa. 2009) (indicating that a 

petitioner waives a claim of PCRA counsel’s ineffectiveness by failing to 

assert the issue in response to the court’s Rule 907 notice or counsel’s 

petition to withdraw); Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. 

Super. 2014) (concluding that under Pennsylvania Supreme Court 

precedent, “claims of PCRA counsel’s ineffectiveness may not be raised for 

the first time on appeal”).
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requirements for proper withdrawal of PCRA counsel, originally set forth in 

Finley, were updated by this Court in Commonwealth v. Friend, 896 A.2d 

607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d 

875 (Pa. 2009), which provides: 

(1) As part of an application to withdraw as counsel, PCRA 

counsel must attach to the application a “no-merit” letter[;] 

2) PCRA counsel must, in the “no-merit” letter, list each claim 

the petitioner wishes to have reviewed, and detail the nature 

and extent of counsel's review of the merits of each of those 

claims[;] 

3) PCRA counsel must set forth in the “no-merit” letter an 

explanation of why the petitioner's issues are meritless[;] 

4) PCRA counsel must contemporaneously forward to the 

petitioner a copy of the application to withdraw, which must 

include (i) a copy of both the “no-merit” letter, and (ii) a 

statement advising the PCRA petitioner that, in the event the 

trial court grants the application of counsel to withdraw, the 

petitioner has the right to proceed pro se, or with the assistance 

of privately retained counsel; 

5) the court must conduct its own independent review of the 

record in the light of the PCRA petition and the issues set forth 

therein, as well as of the contents of the petition of PCRA 

counsel to withdraw; and 

6) the court must agree with counsel that the petition is 

meritless. 

Friend, 896 A.2d at 615 (footnote omitted). “Once counsel for the 

petitioner determines that the issues raised under the PC[R]A are ‘meritless,’ 

and the PC[R]A court concurs, counsel will be permitted to withdraw and the 

petitioner may proceed on his own or with the aid of private counsel to 
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pursue a review of the ruling entered, if he/she so wishes.” Finley, 550 

A.2d at 215. 

 Here, it is apparent from our review of the record that in PCRA 

counsel’s Turner/Finley letter, she failed to address all of the issues raised 

by Appellant in his pro se PCRA petition. In that petition, Appellant raised 

seventeen claims of trial counsel’s ineffectiveness; an assertion that his 

constitutional rights were violated during the investigation in this case; an 

allegation that the Commonwealth withheld exculpatory evidence in violation 

of Brady v. Maryland, 373 U.S. 83 (1963); and a claim that the trial judge 

made improper remarks indicating a bias against Appellant. In counsel’s 

Turner/Finley no-merit letter, she did not set forth any of these specific 

claims, instead simply indicating that Appellant “check[ed] the boxes [on his 

PCRA petition] that he is eligible for relief due to a violation of the 

Constitution or laws, ineffective assistance of counsel, a plea of guilty 

unlawfully induced, and the unavailability at the time of trial of exculpatory 

evidence.” No Merit Letter, 10/22/13, at 2 (unnumbered pages). Counsel 

then stated: 

 To establish that a guilty plea was unlawfully induced as 

the result of ineffective assistance of counsel, the defendant 

must prove that counsel’s ineffectiveness caused him to enter 

the guilty plea. The transcripts of the [p]lea and sentencing 

proceedings held on February 7, 2012[,] show the presiding 

Judge formally asked [Appellant] on the record if he had a 

chance to review matters with his attorney and if [Appellant] 

was satisfied with his attorney’s explanation of his rights – to 

which [Appellant] replied in the affirmative. The [g]uilty [p]lea 

is signed by [Appellant] and he states that he “hereby enters my 
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plea of guilty on the charge of Aggravated Assault (F2) and 

represents that I do this knowingly, voluntarily and intelligently.” 

His attorney was present at all times. 

Id. (citations omitted). Counsel closed her no-merit letter by noting that 

she “reviewed the Clerk of Courts file and the plea and sentencing 

transcripts” and saw “no issues which would, or even might, entitle 

[Appellant] to [PCRA] relief upon any other grounds.” Id. 

Even if counsel’s generalized discussion of Appellant’s seventeen 

individual trial counsel ineffectiveness claims were sufficient, she omitted 

any discussion of his other three issues. Thus, we agree with Appellant that 

PCRA counsel’s no-merit letter was inadequate in this regard and, as such, 

counsel should not have been permitted to withdraw. See Friend, 896 A.2d 

at 615; Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) 

(“If counsel fails to satisfy the foregoing technical prerequisites of 

Turner/Finley, the court will not reach the merits of the underlying claims 

but, rather, will merely deny counsel’s request to withdraw.”) (citation 

omitted). 

Moreover, we conclude that PCRA counsel’s discussion in her no-merit 

letter was insufficient to demonstrate that Appellant’s issues are clearly 

meritless. Namely, in Appellant’s pro se petition, he averred that his trial 

counsel coerced him into entering a guilty plea in the moments before trial 

was set to begin, without providing Appellant “adequate time to fully 

consider the consequences of pleading [guilty]....” Pro Se PCRA Petition, 

10/5/12, at 10 (page unnumbered). Appellant also asserted that he 
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repeatedly told his trial counsel that he was innocent, yet counsel 

ineffectively convinced him that if he did not plead guilty, “he would be 

convicted based on his past criminal history....” Id. In essence, Appellant 

argued that his guilty plea was involuntary, unknowing, and/or unintelligent 

because it was premised on his trial counsel’s coercion and incompetent 

legal advice. 

Initially, we note that it is impossible on this record to verify - or dispel 

- Appellant’s claims regarding counsel’s advice to him prior to his pleading 

guilty. Furthermore, in concluding that this claim is meritless, both PCRA 

counsel and the court erroneously relied on Appellant’s statements during 

the guilty plea colloquy. See PCO at 4-5. That colloquy amounted to the 

following: 

The Court: Have you had a chance to review matters with [your 

trial counsel]? 

[Appellant]: Yes. 

The Court: Are you satisfied with his explanation of those rights? 

[Appellant]: Yes. 

N.T. Guilty Plea, 2/7/12, at 2. The court then discussed the terms of 

Appellant’s negotiated sentence, after which it stated:

The Court: [Appellant], you’re prepared to enter a plea of guilty 

to the agg [sic] assault? 

[Appellant]: Yes, sir. 

The Court: So ordered. Court will make a recommendation of 

RRRI, which means if you complete the program, you’ll be able 

to be released 9 months early. Any questions, [Appellant]? 
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[Appellant]: No. 

Id. at 3. 

 Notably, at no point during this proceeding was Appellant asked if he 

understood (1) the nature of the charge to which he was pleading guilty; (2) 

the factual basis underlying that charge; (3) that he has the right to proceed 

to a jury trial; (4) that he is presumed innocent until found guilty; (5) the 

permissible range of sentences and/or fines for the offenses charged; or (6) 

that the judge was not bound by the terms of any plea agreement tendered 

unless the judge accepted such agreement. See Cmnt. to Pa.R.Crim.P. 590 

(indicating the minimum information the judge should elicit from a 

defendant pleading guilty). Based on the scant colloquy conducted in this 

case, we cannot agree with PCRA counsel and the court that the colloquy 

alone proved that Appellant’s plea was valid, and that he was not coerced 

into pleading guilty by his trial counsel.3

____________________________________________ 

3

PCRA counsel and the court also noted Appellant’s completion of a written 

plea colloquy. That “colloquy” is a single page document, which states at 

the top “PLEA OF GUILTY,” followed by, “I, the above named Defendant, 

hereby enter my plea of guilty on the charge of Aggravated Assault (F2).” 

Written Guilty Plea, 3/12/13. The document then contains a printed line 

stating, “And I represent that I do this knowingly, voluntarily and 

intelligently.” Id. Appellant dated and signed this form, as did his counsel. 

Clearly, the written plea colloquy does not verify that Appellant understood 

any of the six factors set forth above. Thus, we do not agree with PCRA 

counsel or the court that it confirms the validity of Appellant’s plea. 
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 For these reasons, we are constrained to conclude that PCRA counsel’s 

Turner/Finley no-merit letter was inadequate, and the PCRA court erred by 

granting counsel’s petition to withdraw. Therefore, we vacate the court’s 

order denying Appellant’s petition, and remand for the appointment of new 

PCRA counsel. Additionally, while we do not opine on whether Appellant will 

be able to prove he is entitled to post-conviction relief based on the trial 

counsel ineffectiveness claim discussed herein, that issue at least possesses 

arguable merit warranting an evidentiary hearing. 

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/23/2014