J-S11017-17

*

Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AZSION UPSHUR,

Appellant No. 730 WDA 2016

Appeal from the PCRA Order entered March 31, 2016,

in the Court of Common Pleas of Allegheny County,

Criminal Division, at No(s): CP-02-CR-0012739-2012.

BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E. *

MEMORANDUM BY RANSOM, J.: FILED MAY 10, 2017

Appellant, Azsion Upshur, appeals pro se from the order entered March 

31, 2016, denying his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. We reverse and remand with 

instructions. 

The pertinent facts and procedural history, as gleaned from our review 

of the certified record, are as follows. On May 20, 2013, a jury found 

Appellant guilty of robbery and criminal conspiracy for his part in an incident 

wherein he and two other men robbed a local drug-dealer. A co-defendant 

shot the victim, who subsequently died of his injuries. On August 5, 2013, 

the trial court sentenced Appellant to an aggregate term of 10 to 20 years of 

imprisonment. The trial court denied Appellant’s timely-filed motion for 

sentence modification. Appellant timely filed an appeal, and this Court
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affirmed, finding Appellant’s claims waived. See Commonwealth v. 

Upshur, 120 A.3d 376 (Pa. Super. 2015) (unpublished memorandum).

On April 20, 2015, Appellant sent correspondence to the PCRA court, 

in which he indicated his desire to seek post-conviction relief, and he filed an 

actual PCRA petition on August 14, 2015. In response, the PCRA court 

appointed counsel to assist Appellant in either filing a proper PCRA petition 

or a “no-merit” letter and petition to withdraw pursuant to Commonwealth 

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 

A.2d 213 (Pa. Super. 1988) (en banc). PCRA counsel filed a “no-merit” 

letter on October 29, 2015. By order entered November 9, 2015, the PCRA 

court directed PCRA counsel to file an amended petition or proper “no-merit” 

letter. Thereafter, PCRA counsel filed another “no-merit” letter and petition 

to withdraw. 

On February 25, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice 

of intent to dismiss Appellant’s PCRA petition without a hearing. Appellant 

did not file a response. On March 3, 2016, the PCRA granted PCRA counsel’s 

motion to withdraw. By order entered March 31, 2016, the PCRA court 

dismissed Appellant’s petition. On or about April 27, 2016, Appellant filed a 

pro se notice of appeal and requested new counsel. The PCRA court 

appointed present counsel, and present counsel filed an amended notice of 

appeal. The PCRA court did not require Pa.R.A.P. 1925 compliance.

Appellant raises the following issue:
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1. Whether the trial court denied Appellant’s Constitutional 

Right to Counsel by dismissing Appellant’s [PCRA] 

claims because PCRA counsel provided ineffective 

assistance by filing a turner/finley [sic] no merit letter 

when meritorious issues existed?

Appellant’s Brief at 4.

When examining a post-conviction court's grant or denial of relief, we 

are limited to determining whether the court's findings were supported by 

the record and whether the court's order is otherwise free of legal error. 

Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We 

will not disturb findings that are supported in the record. Id. The PCRA 

provides no absolute right to a hearing, and the post-conviction court may 

elect to dismiss a petition after thoroughly reviewing the claims presented 

and determining that they are utterly without support in the record. Id.

Within his brief, Appellant acknowledges that claims of ineffectiveness 

of PCRA counsel cannot be raised for the first time on appeal; rather PCRA 

counsel’s alleged ineffectiveness must be raised in response to the PCRA 

court’s Pa.R.A.P. 907 notice. See Appellant’s Brief at 15-16 (citing cases 

finding waiver). Nevertheless, Appellant contends that he was not given the 

opportunity to respond to the PCRA court’s notice of intent to dismiss 

because he was transferred to a different correctional institution during the 

litigation of his PCRA petition, and, therefore, did not promptly receive his 

mail. The Commonwealth concedes that the record establishes Appellant 

promptly notified the clerk of courts and the PCRA court that he was 
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transferred from SCI-Pittsburgh to SCI-Smithfield, and that the Rule 907 

notice was mailed to Appellant at SCI-Pittsburgh. See Commonwealth’s 

Brief at 8-9. 

Thus, the Commonwealth agrees with Appellant that he may not have 

had the opportunity to raise a challenge to PCRA counsel’s representation in 

a timely response to the PCRA court’s Rule 907 notice. The Commonwealth 

further states:

Your Honorable Court has found that the notice 

requirement of Pa.R.Crim.P. 907(1) is mandatory. 

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. 

Super. 2000). Given this principle, and the fact that 

[Appellant] has been appointed [present] counsel, the 

Commonwealth suggests that it may be appropriate to 

remand the matter so that [the PCRA court] may consider 

the claims [present] counsel has raised, which your 

Honorable Court may not otherwise review. Pa.R.A.P. 

302(a).

Commonwealth’s Brief at 12.

We agree that a remand is appropriate given the circumstances 

presented. We therefore reverse the order denying Appellant’s request for 

post-conviction relief and remand so that the PCRA court may consider the 

claims of ineffectiveness raised by present counsel. 

Order reversed. Case remanded for further proceedings consistent 

with this memorandum. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/10/2017