J-S26027-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EYADE KOMADEGA KOUBIDINA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 249 MDA 2024

Appeal from the PCRA Order Entered January 16, 2024

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0006183-2011

BEFORE: PANELLA, P.J.E., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 24, 2024

Appellant, Eyade Komadega Koubidina, appeals from the order entered 

on January 16, 2024, dismissing as untimely his first petition filed pursuant to 

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Appellant's 

counsel has filed both a petition for leave to withdraw as counsel and an 

accompanying brief pursuant to Commonwealth v. Turner, 544 A.2d 927 

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

After careful review, we deny counsel’s petition to withdraw and direct counsel 

to fully comply with all Turner/Finley procedures as discussed below or file 

an advocate’s brief. 

We previously determined:

[Appellant] was [] charged with one count of aggravated indecent 

assault, involuntary deviate sexual intercourse (IDSI), indecent 

assault, corruption of minors and unlawful contact with minor 

(sexual offenses). Following a jury trial on April 1, 2013, 

[Appellant] was found guilty on all counts. Thereafter, on July 15, 
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2013, the trial court sentenced [him] to the mandatory sentence 

of 10–20 years' imprisonment for the IDSI [conviction with some 

of the charges] merg[ing] with IDSI for sentencing purposes. 

Additionally, the trial court imposed a concurrent period of seven 

years' probation [for] corruption of minors.

Commonwealth v. Koubidina, 2014 WL 10889649, at *2 (Pa. Super. 2014)

(non-precedential decision). We affirmed Appellant’s judgment of sentence 

in a non-precedential decision filed on August 28, 2014. Appellant did not 

seek further review. 

On September 8, 2022, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel to represent Appellant. After several extensions of 

time were granted, counsel for Appellant filed an amended PCRA petition on 

September 28, 2023. By order entered on January 16, 2024, the PCRA court 

denied Appellant’s untimely petition for lack of jurisdiction, after concluding it 

was not subject to exception under the PCRA. This timely appeal resulted.1

“Prior to addressing the merits of the appeal, we must review counsel's 

compliance with the procedural requirements for withdrawing as counsel.” 

Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016) (citation 

omitted). This Court has held: 

Counsel petitioning to withdraw from PCRA representation must 

proceed [] under [Turner/Finley.] Turner/Finley counsel must 

review the case zealously. Turner/Finley counsel must then 

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1 On February 14, 2024, counsel for Appellant filed a notice of appeal. On 

February 15, 2024, the PCRA directed counsel to file a statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 2, 2024, 

counsel complied. The trial court issued an opinion pursuant to Pa.R.A.P. 

1925(a) on March 4, 2024.
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submit a “no-merit” letter to the trial court, or brief on appeal to 

this Court, detailing the nature and extent of counsel's diligent 

review of the case, listing the issues which the petitioner wants to 

have reviewed, explaining why and how those issues lack merit, 

and requesting permission to withdraw. 

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

citations and quotations omitted). “[I]n an appeal from the denial of a PCRA 

petition, if counsel files a petition to withdraw as appellate counsel in this 

Court, [a] letter to the client, inter alia, shall inform the PCRA petitioner that 

upon the filing of counsel's petition to withdraw, the petitioner-appellant 

has the immediate right to proceed in the appeal pro se or through 

privately-retained counsel.” Commonwealth v. Muzzy, 141 A.3d 509, 512 

(Pa. Super. 2016) (citation omitted; emphasis in original) (explaining it is a 

misstatement to advise a PCRA petitioner “that he may proceed either pro se

or with private counsel only if, and after, we grant counsel's petition to 

withdraw, [otherwise, the petitioner] will lose the very right that counsel is 

obligated to inform her client that he retains[.]”). “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. Upon doing so, the court will then take 

appropriate steps, such as directing counsel to file a proper Turner/Finley

request or an advocate's brief.” Wrecks, 931 A.2d at 721 (internal citations 

and quotations omitted).

Here, upon our review, counsel for Appellant has filed a Turner/Finley

brief and petition to withdraw as counsel with this Court. In the 
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Turner/Finley brief, counsel avers that “[a] copy of this letter brief and the 

[a]pplication to [w]ithdraw as [c]ounsel have been furnished to Appellant, 

along with a letter advising him of his right to retain new counsel or raise any 

points as a pro se litigant which he may deem worthy of this Court’s attention.” 

Turner/Finley Brief at 19. Earlier in the Turner/Finley brief, however, 

counsel suggested that Appellant’s right to proceed pro se or with the 

assistance of new counsel was conditioned upon the trial court’s approval of 

the application to withdraw. See id. at 12 (“PCRA counsel must 

contemporaneously forward to petitioner a copy of the application to withdraw 

which must include [] a statement advising the PCRA petitioner that, in the 

event that the trial court grants the application of counsel to 

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

assistance of counsel.”) (emphasis added). Here, counsel indicated that 

Appellant may proceed pro se or with retained counsel, if the trial court 

granted the application to withdraw. Where a petition to withdraw is 

forwarded in the context of collateral appeal, such advice is incorrect. Muzzy, 

141 A.3d at 512 (“if counsel files a petition to withdraw as appellate counsel 

in this Court, the letter to the client, inter alia, shall inform the PCRA petitioner 

that upon the filing of counsel's petition to withdraw, the petitioner-appellant 

has the immediate right to proceed in the appeal pro se or through 

privately-retained counsel.”) (emphasis omitted).

More importantly, however, we cannot verify whether Appellant 

received either the Turner/Finley brief or the application to withdraw as 
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counsel. Neither document submitted to this Court contains proof of service 

upon Appellant. Instead, counsel for Appellant served both documents on our 

Prothonotary and the Commonwealth. See Turner/Finley Brief at 21; see 

also Application to Withdraw as Counsel, 4/23/2024, at *3 (unpaginated). 

Moreover, while counsel avers that she sent a letter to Appellant 

accompanying the Turner/Finley brief and application to withdraw, counsel 

failed to provide a copy of that letter to this Court as required. See 

Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006). As such, 

we cannot verify that a letter was sent to Appellant or what, if any, additional 

advice counsel provided. 

Accordingly, we conclude that counsel's failures render “her attempt to 

withdraw as counsel defective under relevant case law prescribing the proper 

procedure for withdrawal in a collateral appeal.” Muzzy, 141 A.3d at 512. 

Hence, we conclude that the petition to withdraw is deficient, and we deny it 

at this time. Counsel is hereby instructed either to file an advocate's brief or 

to refile the Turner/Finley brief and application to withdraw as counsel within 

30 days of the date of this memorandum. If she chooses the latter, she must 

provide proper service to Appellant and attach a copy of her accompanying 

letter to Appellant providing accurate notice of Appellant's immediate right to 

proceed pro se or with private counsel. If counsel files a revised petition to 

withdraw and Turner/Finley brief, Appellant shall have 30 days from receipt 

of the revised petition to file a pro se brief or a brief by newly retained private 
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counsel, if he so chooses. The Commonwealth will then have 30 days to file 

a responsive brief.

Petition to withdraw as counsel denied. Jurisdiction retained.