J-S67034-16

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

JOHN STEVEN DREHER

Appellant No. 756 EDA 2016

Appeal from the Order Entered February 12, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0008821-2009

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 12, 2016

This is an appeal from the order of the Court of Common Pleas of 

Montgomery County dismissing Appellant John Steven Dreher’s pro se 

petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 

9541-9546, as untimely filed. PCRA appellate counsel has filed a petition to 

withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 518 

Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 

213 (Pa.Super. 1988). After careful review, we note that the PCRA court 

failed to appoint counsel to properly assist Appellant with his first postconviction relief filing before dismissing Appellant’s petition as untimely filed. 

Accordingly, we deny counsel’s motion to withdraw, vacate the PCRA court’s 

order, and remand for proceedings consistent with this decision.
J-S67034-16

- 2 -

In August 2009, Appellant was charged in connection with his 

roomate’s allegations that Appellant had stolen several pieces of his jewelry 

and various collectible items and sold them at a local pawn shop. On 

September 13, 2010, Appellant pled to theft by unlawful taking1and the 

lower court sentenced him to time-served to twenty-three months 

incarceration to be followed by three years probation. On the same day, the 

sentencing court paroled Appellant from the bench, noting Appellant had 

been incarcerated for over a year since his arrest. Appellant did not file a 

timely notice of appeal from his judgment of sentence.2

Thereafter, Appellant was subsequently charged on several occasions 

with violating his probation and parole for various reasons, such as failing to 

report to probation and parole officers, failing to maintain a verifiable 

address, failing to pay fines and costs, and absconding from supervision. 

Each time, after Appellant stipulated to the violation, his probation and 

parole was revoked and he was resentenced to complete the remainder of 

his sentences. 

____________________________________________

1 18 Pa.C.S. § 3921(a) (third degree felony).

2 On June 25, 2013, Appellant filed a vague notice of appeal to this Court. 

Although Appellant did not identify the specific order or sentence from which 

he was appealing, he indicated he wished to appeal his case “8821-09.” 

Before the Court could address this filing, Appellant filed a praecipe for 

discontinuance with the assistance of counsel on October 4, 2013. This 

Court granted his requested relief and discontinued the appeal.
J-S67034-16

- 3 -

On October 19, 2015, while the prosecution of Appellant’s most recent 

probation violation was pending, Appellant filed a pro se petition entitled 

“Wish to be Accorded Due Process and Appeal Original Sentence.” On 

December 2, 2015, the lower court appointed the Montgomery County Public 

Defender’s Office to review the petition. On December 14, 2015, the lower 

court gave Appellant notice that it desired to dismiss the filing, which it 

deemed an untimely PCRA petition, without a hearing pursuant to 

Pa.R.Crim.P. 907.

Although the public defender’s office had been appointed in this case, 

Appellant filed numerous motions for the appointment of private counsel as 

public defender’s office had not contacted him to discuss his petition. On 

January 22, 2016, Appellant filed a pro se response to the PCRA court’s 

notice of intent to dismiss, reiterating his request for private counsel. From 

the docket, it appears the public defender’s office subsequently made an oral 

motion to withdraw due to a conflict of interest. On February 4, 2016, the 

trial court filed an order permitting the public defender’s office to withdraw.

Even though Appellant continued to ask for counsel to be appointed, 

the PCRA court ignored his requests and denied his PCRA petition without a 

hearing on February 12, 2016.3 Appellant filed a pro se notice of appeal in 

____________________________________________

3 Although the docket sheet labels this filing as the trial court’s order 

denying Appellant’s motion to dismiss, the trial court’s order dismisses 

Appellant’s pro se petition filed on October 19, 2015.
J-S67034-16

- 4 -

this Court, which was dated February 29, 2016 and placed in the mail on 

March 3, 2016. As Appellant filed additional requests for counsel, the PCRA 

court appointed Sean E. Cullen, Esq. to represent Appellant on March 4, 

2016. The docket indicates that Appellant’s pro se notice of appeal was 

forwarded to the trial court, this Court, the district attorney, and Atty. 

Cullen. On March 11, 2016, the PCRA court directed Appellant to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). On March 22, 2016, Atty. Cullen filed a supplemental notice of 

appeal and a request for transcripts. On April 1, 2016, Atty. Cullen filed a 

1925(b) statement on Appellant’s behalf. On April 20, 2016, this Court filed 

a per curiam order accepting the supplemental notice of appeal for filing. 

As an initial matter, we must determine whether we have jurisdiction 

over this appeal. “The timeliness of an appeal and compliance with the 

statutory provisions granting the right to appeal implicate an appellate 

court's jurisdiction and its competency to act.” Commonwealth v. 

Williams, 630 Pa. 169, 106 A.3d 583, 587 (2014). Our rules of appellate 

procedure provide that generally a notice of appeal “shall be filed within 30 

days after the entry of the order from which the appeal is taken.” Pa.R.A.P. 

903(a). In this case, Appellant was required to file a notice of appeal within 

thirty days of the PCRA court’s denial of his petition on February 12, 2016.

While Appellant’s pro se notice of appeal was filed within thirty days of 

his judgment of sentence, his appointed counsel did not file his supplemental 

notice of appeal until after the thirty-day period had elapsed. As a result, 
J-S67034-16

- 5 -

we must determine whether Appellant’s pro se notice of appeal was a valid 

filing. As a general rule, our courts prohibit hybrid representation and do 

not typically entertain pro se filings while an appellant is represented by 

counsel. See Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d 282, 293 

(2010); Commonwealth v. Ellis, 534 Pa. 176, 180-81, 626 A.2d 1137, 

1139–40 (1993). But see Commonwealth v. Cooper, 611 Pa. 437, 27 

A.3d 994 (2011). Specifically, our procedural rules require that a pro se

filing submitted by a counseled defendant is simply noted in the docket and 

forwarded to counsel. Pa.R.Crim.P. 720(A)(1). 

Nevertheless, we observe that at the time Appellant mailed his notice 

of appeal from prison on March 3, 2016, he was not represented by counsel. 

As the PCRA court denied Appellant’s repeated requests for counsel, 

Appellant submitted a pro se appeal because he did not foresee that counsel 

would be appointed on his behalf before the time period for filing a notice of 

appeal expired. Pursuant to the prisoner mailbox rule, a prisoner’s legal 

documents are “deemed filed when placed in the hands of prison authorities 

for mailing.” Commonwealth v. Whitehawk, 330 EDA 2016 (Pa.Super. 

filed August 24, 2016).4 Thus, Appellant’s pro se notice of appeal was timely 

____________________________________________

4 Our rules of appellate procedure similarly provide that:

[a] pro se filing submitted by a prisoner incarcerated in a 

correctional facility is deemed filed as of the date it is delivered 

to the prison authorities for purposes of mailing or placed in the 

institutional mailbox, as evidenced by a properly executed 

(Footnote Continued Next Page)
J-S67034-16

- 6 -

filed on March 3, 2016, as evidenced by the date postmarked on the 

envelope he sent from prison. As the PCRA court did not appoint Appellant 

counsel until the following day, March 4, 2016, there are no concerns of 

hybrid representation. Thus, we have jurisdiction to review this timely 

appeal.

The parties agree that the trial court correctly characterized 

Appellant’s October 19, 2015 pro se petition entitled “Wish to be Accorded 

Due Process and Appeal Original Sentence” as a PCRA petition. We agree 

that this filing falls under the ambit of the PCRA, which is the “exclusive 

vehicle for obtaining post-conviction collateral relief.” Commonwealth v. 

Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001). When reviewing the 

denial of a PCRA petition, we are guided by the following standard:

The standard of review for an order denying post-conviction 

relief is limited to whether the record supports the PCRA court's 

determination, and whether that decision is free of legal error. 

The PCRA court's findings will not be disturbed unless there is no 

support for the findings in the certified record.

Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations 

omitted).

(Footnote Continued) _______________________

prisoner cash slip or other reasonably verifiable evidence of the 

date that the prisoner deposited the pro se filing with the prison 

authorities. 

Pa.R.A.P. 121.
J-S67034-16

- 7 -

Before we proceed to review the merits of Appellant’s PCRA petition, 

we must evaluate counsel’s petition to withdraw his representation:

Counsel petitioning to withdraw from PCRA representation must 

proceed ... under Turner, supra and Finley, supra and ... 

must review the case zealously. Turner/Finley counsel must 

then 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 petitioner 

wants to have reviewed, explaining why and how those issues 

lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no 

merit” letter/brief; (2) a copy of counsel's petition to withdraw; 

and (3) a statement advising petitioner of the right to proceed 

pro se or by new counsel.

Where counsel submits a petition and no-merit letter that ... 

satisfy the technical demands of Turner/Finley, the court —

trial court or this Court — must then conduct its own review of 

the merits of the case. If the court agrees with counsel that the 

claims are without merit, the court will permit counsel to 

withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting 

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

We note that Appellant’s appointed counsel initially filed his petition to 

withdraw on the basis of frivolity pursuant to Anders v. California, 386 

U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009). We accepted counsel’s Anders brief in lieu of a Turner-Finley

letter, as an Anders brief provides greater protection to criminal 

defendants. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 

(Pa.Super. 2004). After reviewing the letter counsel sent Appellant 

informing him of his intent to withdraw, this Court noted that counsel 
J-S67034-16

- 8 -

improperly framed Appellant’s ability to respond to this filing as contingent 

on the granting of counsel’s petition to withdraw. Thus, on June 20, 2016, 

this Court issued a per curiam order, expressly notifying Appellant that he

could file a pro se response or a response from privately retained counsel. 

This Court also directed Atty. Cullen to send Appellant another letter 

informing him of his immediate right to proceed in the appeal pro se or 

through privately retained counsel. See Commonwealth v. Muzzy, 141 

A.3d 509, 511 (Pa.Super. 2016); Commonwealth v. Friend, 896 A.2d 607 

(Pa.Super. 2006). Atty. Cullen complied with this mandate. Appellant filed 

a pro se response on July 13, 2016.

After reviewing the record and counsel’s petition to withdraw, we find 

that PCRA appellate counsel complied with the technical requirements of 

Turner and Finley, supra. In his “no-merit” letter, PCRA appellate counsel 

detailed the nature and extent of her review, listed the issues which 

Appellant raised in his pro se petition, and explained why he believed 

Appellant’s petition was untimely filed and frivolous. Moreover, counsel 

indicated that after his own independent review of the record, he could not 

identify any meritorious issues that he could raise on Appellant’s behalf.

In our independent review of the record, we observe that Appellant 

was never afforded counsel to assist him in filing his PCRA petition. As 

noted above, after Appellant filed his initial pro se petition, the PCRA court 

appointed the public defender’s office to represent Appellant. Instead of 

filing an amended petition, the public defender’s office filed a petition to 
J-S67034-16

- 9 -

withdraw, citing a conflict of interest. The PCRA court did not appoint 

Appellant new counsel until after it denied Appellant’s petition as untimely 

and Appellant filed a notice of appeal. Appellant is entitled to counsel to 

represent him on his first PCRA petition “despite any apparent untimeliness 

of the petition or the apparent non-cognizability of the claims presented.” 

Kutnyak, 781 A.2d at 1262.

Accordingly, we are constrained to vacate the PCRA court’s order 

denying Appellant’s PCRA petition and remand for proceedings consistent 

with this decision. PCRA counsel should assist Appellant in determining 

whether he can file an amended PCRA petition averring an exception to the 

PCRA time limits and should examine if there are other issues that may be of 

merit if Appellant's petition is timely. PCRA counsel may again elect to file a 

Turner-Finley no-merit letter.

Order vacated. Petition to Withdraw denied. Appellant’s Motions filed 

on August 11, 2016 and September 1, 2016 are denied as moot.5 Case 

remanded with instructions. Jurisdiction relinquished.

____________________________________________

5 Appellant filed these pro se applications in response to counsel’s petition to 

withdraw, providing further detail of the claims raised in his PCRA petition.
J-S67034-16

- 10 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2016