J-A28014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES HOWARD FOWLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 557 WDA 2019

Appeal from the PCRA Order Entered August 17, 2018

In the Court of Common Pleas of McKean County Criminal Division at 

No(s): CP-42-CR-0000458-2015

BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY OLSON, J.: FILED: MARCH 15, 2021

Appellant, James Howard Fowler, appeals from the order entered August 

17, 2018, dismissing his petition for collateral relief filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we 

are constrained to affirm. 

A previous appeal of this Court summarized the facts of this case as 

follows. 

In the spring of 2015, Appellant made two separate cocaine sales 

to Michelle King (“King”), then acting as a confidential informant 

for the McKean County Drug Task Force. A body camera hidden 

on King recorded the second cocaine sale. Minutes after the 

second sale was complete, members of the McKean County Drug 

Task Force pulled over the vehicle that Appellant and King were 

traveling in, and arrested Appellant. Officers recovered the 

pre-recorded buy money from Appellant's person. During a 

subsequent search of Appellant's residence, officers found, among 

other items, a scale, baggies, a ledger of prior drug transactions, 

and over 100 grams of cocaine.
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Appellant was [subsequently] charged with four counts of 

possession with the intent to deliver [(PWID)], five counts of 

possession of a controlled substance, two counts of criminal use 

of a communication facility, and two counts of conspiracy to 

commit [PWID. The charges were docketed at trial court docket 

numbers CP-42-CR-458-2015 and CP-42-CR-459-2015.] 

***

[Ultimately,] Appellant elected to proceed to a jury trial. King 

testified at trial, as did various members of the McKean County 

Drug Task Force. The Commonwealth showed the jury a 

40-minute video and audio recording of the second cocaine sale, 

recorded on a body camera worn by King.

At trial, Appellant admitted to selling cocaine to King on both 

occasions charged by the Commonwealth, and to possessing most 

of the drugs and other paraphernalia recovered from his 

residence. Rather than deny the sales, Appellant sought to 

portray King as a trusted friend who had betrayed him and 

entrapped him to avoid prosecution for her own drug offenses. 

Appellant introduced evidence suggesting that he was a drug 

addict who only possessed cocaine for personal use, and that he 

only sold cocaine to King on two occasions after she hounded him 

relentlessly.

After a two day trial, the jury convicted Appellant on all counts. 

The trial court sentenced Appellant to an aggregate term of [nine 

and one-half] to 19 years[’] imprisonment.

Commonwealth v. Fowler, 2017 WL 2591486, at *1 (Pa. Super. June 15, 

2017) (superfluous capitalization and footnotes omitted). This Court affirmed 

Appellant’s judgment of sentence on June 15, 2017. Id. Appellant did not 

seek further review. 

On January 26, 2018, Appellant filed a timely pro se PCRA petition. In 

his petition, Appellant alleged that both trial and appellate counsel provided 

ineffective assistance. On May 3, 2018, the PCRA court entered an order

scheduling an evidentiary hearing and appointed Erika Mills, Esquire (Attorney 
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Mills) to represent Appellant. On July 24, 2018, the day of the scheduled 

evidentiary hearing, Attorney Mills requested a continuance and leave to file 

an amended PCRA petition on Appellant’s behalf. Attorney Mills provided the 

following explanation for her request: 

... I [have] had a grand total of 20 minutes to sit down with 

[Appellant] face-to-face and go over documents pertaining to his 

case. There [is] a lot more to this [case] than could adequately 

be addressed . . . within the 20 minutes that we had face-to-face. 

I did have one telephone conference with [Appellant] through the 

State Correctional Institution, getting that set up through the 

State Correctional Institution [was] not [] easy but I was able to 

make contact with [Appellant] at one point and time. I have 

reviewed his – his [p]etition. In order to fully develop . . . these 

claims and to develop this case I am again . . . requesting this 

continuance and I [am] asking the [c]ourt to reconsider what it [] 

indicated at the outset of these proceedings as its ruling. I do 

[not] feel that . . . I [am] ready to proceed, I know my client 

definitely does [not] feel I [am] ready to proceed and . . . it [is] 

our position . . . that if this matter goes forward today given the 

lack of [] time [for] preparation that he and I have had together 

it may amount to a further assertion of ineffective assistance 

against [myself.]

N.T. Evidentiary Hearing, 7/24/18, at 6-7. The PCRA court denied Attorney 

Mills’ request for a continuance. Id. at 5; see also PCRA Court Order, 8/1/18,

at 1. The PCRA court, however, stated that it would schedule additional 

proceedings if requested by either party. N.T. Evidentiary Hearing, 7/24/18, 

at 5. Accordingly, the evidentiary hearing commenced and both Appellant’s 

trial and appellate counsel testified. Id. at 25-80. At the conclusion of the 

hearing, the PCRA court stated that Appellant’s claims did not provide “any 
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basis for PCRA relief” and, as such, indicated on the record that it intended to 

deny the petition. Id. at 86. 

Before the PCRA court entered a formal, written order dismissing the 

PCRA petition, Appellant filed a pro se notice of appeal, a pro se motion to 

proceed in forma pauperis, and a pro se motion for production of the transcript 

of the evidentiary hearing. The aforementioned filings were received on 

August 8, 2018 by the clerk of courts, who time and date stamped all of the

pro se submissions. In addition, the clerk notated the docket to reflect the 

date upon which it received Appellant’s pro se motion to proceed in forma 

pauperis and his motion for production of the hearing transcript. The clerk

did not, however, notate the docket to reflect the receipt of Appellant’s pro se 

notice of appeal. Additionally, there is no indication that the clerk forwarded 

any of the aforementioned filings to Attorney Mills, as required by Pa.R.Crim.P. 

576(A)(4) (explaining that the clerk of courts must time-stamp, make a 

docket entry, and then forward all pro se filings by a represented defendant 

to his or her counsel). 

Thereafter, on August 17, 2018, the PCRA court filed a written order 

formally dismissing Appellant’s PCRA petition. PCRA Court Order, 8/17/18, at 

1. Attorney Mills did not file an appeal from the PCRA court’s dismissal order. 

Thereafter, on October 12, 2018, Appellant wrote a letter to the clerk inquiring 

about the status of his appeal. On November 5, 2018, the PCRA court issued 

an order explaining, inter alia, that “no appeal [from] the court’s order denying 

[Appellant’s] PCRA [petition was] filed.” PCRA Court Order, 11/5/18, at 1. As 
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such, on January 8, 2019, Appellant filed a pro se motion seeking

reinstatement of his PCRA appellate rights nunc pro tunc. On February 8, 

2019, the PCRA court issued an opinion in which it explained the apparent 

breakdown regarding Appellant’s pro se notice of appeal. Specifically, the 

court explained that the clerk received Appellant’s notice of appeal on August 

8, 2018 but, because Appellant “was represented by counsel and had not been 

granted in forma pauperis status and the fee for filing the appeal had not been 

paid, the [c]lerk did not docket the appeal.” PCRA Court Opinion and Order, 

2/8/19, at *1 (un-paginated). In addition, the court stated: 

[Appellant] clearly wanted to perfect an appeal of the court’s 

denial of his PCRA [p]etition. His counsel, [Attorney Mills,] could 

have perfected [Appellant’s pro se appeal] even if [Appellant

indicated] that he intended to represent himself regarding the 

appeal. See[] Commonwealth v. Champney, 783 A.2d. 837 

(Pa. Super. 2007); Commonwealth v. Khalil, 806 A.2d 415, 418 

(Pa. Super. 2002). In addition, [Appellant’s notice of] appeal that 

was sent to the [c]lerk should have been docketed of record even 

though [Appellant] had not yet been granted in forma pauperis 

status. See Pa.R.A.P.[] 902. 

Id. at *2-*3 (un-paginated). Based upon the “breakdown in communication 

between [Appellant] and Attorney Mills,” the PCRA court appointed 

“Christopher Martini, Esquire [(Attorney Martini)] . . . to represent 

[Appellant’s] interests.” Id. at *3 (un-paginated). 

On March 15, 2019, Attorney Martini filed a motion requesting 

clarification of the PCRA court’s February 8, 2019 opinion and order. In the 

motion, Attorney Martini asked the court to enter an order explicitly 

reinstating Appellant’s PCRA appellate rights nunc pro tunc. The PCRA court 
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entered an order on March 18, 2019, reinstating Appellant’s PCRA appellate

rights nunc pro tunc and directed Appellant to file “a notice of appeal on or 

before April 14, 2019.” PCRA Court Order, 3/18/19, at 1. 

Appellant, through counsel, filed a notice of appeal to this Court on April 

12, 2019. On May 17, 2019, the PCRA entered an order directing Appellant 

to file a concise statement of errors complained of on appeal within 21 days 

pursuant to Pa.R.A.P. 1925(b). Appellant failed to do so. Instead, on July 17, 

2019, Appellant’s counsel filed a motion requesting an extension of time to 

file a Rule 1925(b) statement. The PCRA court granted the motion and 

directed Appellant to file a concise statement on or before August 14, 2019. 

On August 13, 2019, however, Attorney Martini informed the court that, in 

lieu of a Rule 1925(b) statement, he intended to file a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).1 See Pa.R.A.P. 1925(c)(4). Thereafter, 

Attorney Martini filed a motion to withdraw as counsel, which the PCRA court 

granted on November 15, 2019. The PCRA court then appointed current

counsel, Daniel C. Lang, Esquire (Attorney Lang), to represent Appellant on 

appeal. 

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1

It is well settled that “[c]ounsel petitioning to withdraw from PCRA 

representation must proceed not under Anders but under Commonwealth 

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

A.2d 213 (Pa. Super. 1988).” Commonwealth v. Wrecks, 931 A.2d 717, 

721 (Pa. Super. 2007) (parallel citations omitted).
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On January 15, 2020, this Court entered an order remanding the matter 

to the PCRA court because Appellant’s counsel failed to file a brief, despite 

being ordered to do so. Order, 1/15/20, at 1. The order also directed the 

PCRA court to notify this Court, within 30 days, of all findings and actions 

taken. Id. at 1. On January 21, 2020, the PCRA court explained that all 

notices regarding Appellant’s appeal were sent to Attorney Martini, not 

Attorney Lang, and, as such, Attorney Lang failed to file an appellate brief on 

Appellant’s behalf because “he did not receive notice of the briefing schedule, 

etc.” PCRA Court’s Opinion and Order, 1/21/20, at *1 (un-paginated). 

Accordingly, the PCRA court entered an order directing Attorney Lang to take 

the necessary action with this Court. Id. at *2 (un-paginated).

On March 6, 2020, Attorney Lang filed a motion for remand. In his 

motion, Attorney Lang asked this Court to vacate the PCRA court’s order 

dismissing Appellant’s PCRA petition, grant Attorney Lang 45 days to file an 

amended PCRA petition on Appellant’s behalf, and direct the PCRA court to 

conduct another evidentiary hearing in light of Attorney Mills’ deficient 

representation during the July 24, 2018 hearing. In addition, Attorney Lang

requested leave to file a concise statement because Attorney Martini filed a 

notice of his intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4) 

rather than a Rule 1925(b) concise statement. On March 19, 2020, this Court 

entered an order denying the remand request for a new evidentiary hearing 

but granted Attorney Lang leave to file a Rule 1925(b) statement. Attorney 
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Lang filed a concise statement on Appellant’s behalf on April 1, 2020, and the 

PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on April 27, 2020.

Appellant raises the following issue on appeal:

Whether the [PCRA] court erred in its handling of [] Appellant’s 

PCRA [p]etition by proceeding to conduct a[n evidentiary hearing] 

in this matter when the [] court knew that [] Appellant’s PCRA 

counsel, [Attorney] Erika Mills[,] was wholly unprepared and 

rendered such ineffective assistance of counsel that [] Appellant 

was effectively denied his right to counsel?

Appellant’s Brief at 2.

As a prefatory matter, we must address whether the PCRA court erred 

in considering Appellant’s January 8, 2019 motion for reinstatement of his 

PCRA appellate rights nunc pro tunc. This Court previously explained that a 

petition seeking restoration of PCRA appellate rights nunc pro tunc must be 

treated as a subsequent PCRA petition. Commonwealth v. Fairiror, 809 

A.2d 396, 397 (Pa. Super. 2002). As such, “all requests for reinstatement of 

appellate rights, including PCRA appellate rights, must meet the timeliness 

requirements of the PCRA.” Id.

The timeliness requirement for PCRA petitions “is mandatory and 

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248 

(Pa. 2013) (citation omitted). A PCRA petition is timely if it is “filed within one 

year of the date the judgment [of sentence] becomes final.” 42 Pa.C.S.A. 

§§ 9545(b)(1). “[A] judgment becomes final at the conclusion of direct 

review, including discretionary review in the Supreme Court of the United 

States and the Supreme Court of Pennsylvania, or at the expiration of time 
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for seeking the review.” 42 Pa.C.S.A. §§ 9545(b)(3). Here, Appellant’s 

judgment of sentence became final on July 15, 2017. Hence, Appellant’s 

January 8, 2019, petition is manifestly untimely and, unless one of the 

statutory exceptions to the time-bar applies, no court may exercise 

jurisdiction to consider this petition.

Pursuant to 42 Pa.C.S.A. § 9545(b), there are three statutory 

exceptions to the timeliness provision that allow for very limited circumstances 

under which the late filing of a PCRA petition will be excused. To invoke an 

exception, a petitioner must allege and prove one of the following:

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or laws of this Commonwealth 

or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to 

the petitioner and could not have been ascertained by the exercise 

of due diligence; or

(iii) the right asserted is a constitutional right that was recognized 

by the Supreme Court of the United States or the Supreme Court 

of Pennsylvania after the time period provided in this section and 

has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition 

may be considered if it is filed “within 60 days of the date the claim could have 

been presented.” 42 Pa.C.S.A. § 9545(b)(2).

2

 It is the appellant’s burden to 

____________________________________________

2 Effective December 24, 2018, the deadline set forth in 42 Pa.C.S.A. 

§ 9545(b)(2) was extended to one year. The extension does not apply in this 

case, however, because a timely petition in this case needed to be filed on or 

before July 15, 2018.
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“allege and prove that one of the timeliness exceptions applies.” 

Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).

In his motion to reinstate his PCRA appellate rights nunc pro tunc, 

Appellant made no attempt to plead or prove that one of the exceptions to the 

PCRA time-bar applied. Accordingly, no court may exercise jurisdiction over 

that filing. As such, we conclude that the PCRA court erred in failing to treat 

Appellant’s motion to reinstate his PCRA appellate rights nunc pro tunc as a 

PCRA petition and, in turn, granting Appellant relief. 

This, however, does not end our inquiry. Indeed, the circumstances of 

this case are complicated by the fact that Appellant filed a single, pro se notice 

of appeal on August 8, 2018. As we stated above, Appellant filed the August 

8, 2018 notice of appeal after his evidentiary hearing but before the PCRA 

court entered its written order formally dismissing the petition sub judice. At 

this time, Appellant was represented by Attorney Mills. We shall address the 

impact of these circumstances upon our capacity to exercise appellate 

jurisdiction and reach the merits of Appellant’s claims.

First, we consider the fact that Appellant filed a pro se notice of appeal

while represented by counsel. As this Court previously explained:

In this Commonwealth, hybrid representation is not permitted. 

See Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011) 

(concluding that a petitioner's pro se motion for remand when that 

petitioner is represented by counsel is impermissible as hybrid 

representation). Accordingly, this Court will not accept a pro se

motion while an appellant is represented by counsel; indeed, pro 

se motions have no legal effect and, therefore, are legal nullities. 

See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 
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2007) (discussing pro se post-sentence motion filed by a 

petitioner who had counsel).

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (parallel 

citations omitted). Pa.R.Crim.P. 576(A)(4) dictates, however, that 

[i]n any case in which a defendant is represented by an attorney, 

if the defendant submits for filing a written motion, notice, or 

document that has not been signed by the defendant's attorney, 

the clerk of courts shall accept it for filing, time stamp it 

with the date of receipt and make a docket entry reflecting 

the date of receipt, and place the document in the criminal case 

file. A copy of the time stamped document shall be 

forwarded to the defendant's attorney and the attorney for 

the Commonwealth within 10 days of receipt.

Pa. R. Crim. P. 576(A)(4) (emphasis added). When, as in this case, “the pro 

se filing is a notice of appeal,” this Court has stated that “it is to be docketed 

and acted upon” because “a notice of appeal protects a constitutional right 

[and, as such,] it is distinguishable from other filings.” Commonwealth v. 

Chestnut, 2020 WL 6194413, *2 (Pa. Super. Oct. 22, 2020) (unpublished 

memorandum), citing Williams, 151 A.3d at 624. If a clerk of courts fails to 

comply with Pa.R.Crim.P. 576(A)(4), especially when dealing with a pro se 

notice of appeal, a breakdown in the court system occurs. See Chestnut, 

2020 WL 6194413 at *3; see also Commonwealth v. Perry, 820 A.2d 734, 

735 (Pa. Super. 2005). 

Herein, Appellant filed a pro so notice of appeal on August 8, 2018. The 

PCRA court explained that, because Appellant “was represented by counsel 

and had not been granted in forma pauperis status and the fee for filing the 

appeal had not been paid, the [c]lerk did not docket the appeal.” PCRA Court 
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Opinion and Order, 2/8/19, at *1 (un-paginated). There is also no indication 

that the clerk forwarded Appellant’s pro se notice of appeal to Attorney Mills, 

his counsel of record at the time.3 Instead, the clerk of courts simply placed 

the notice of appeal in the criminal case file. Id. at *1 (un-paginated). 

Accordingly, we conclude that this resulted in a breakdown in the court system

and that Appellant’s August 8, 2018 pro se filing should be treated as the 

operative and timely notice of appeal in this case. 

There is, however, another procedural issue we must address before we 

consider the merits of Appellant’s claims. As stated above, when Appellant 

filed his pro se notice of appeal, he filed a single notice of appeal. Appellant, 

therefore, did not file a notice of appeal at each trial court docket as required 

by Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). As this Court 

previously explained: 

Pennsylvania Rule of Appellate Procedure 341(a) directs that “an 

appeal may be taken as of right from any final order of a 

government unit or trial court.” Pa.R.A.P. 341(a). “The Official 

Note to Rule 341 was amended in 2013 to provide clarification 

regarding proper compliance with Rule 341(a)....” [Walker, 185 

A.3d at 973]. The Official Note now reads:

____________________________________________

3 We recognize that Appellant filed his pro se notice of appeal on August 8, 

2018, after the court announced its intention to dismiss the petition but prior 

to entry of the written order formally dismissing Appellant’s PCRA petition on 

August 17, 2018. If the clerk had forwarded the pro se filing to Appellant’s 

counsel, it is possible that Attorney Mills could have perfected the appeal 

following the issuance of the August 17, 2018 order. See Champney, 783 

A.2d. at 841. This forms a compelling basis for finding a breakdown in the 

judicial system. Moreover, “[a] notice of appeal filed after announcement of 

a determination but before the entry of an appealable order [is] treated as 

filed after such entry and on the date thereof.” Pa.R.A.P. 905(5).
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Where . . . one or more orders resolves issues arising on 

more than one docket or relating to more than one 

judgment, separate notices of appeals must be filed. 

Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa. 

Super. 2007) (quashing appeal taken by single notice of 

appeal from order on remand for consideration under 

Pa.R.Crim.P. 607 of two persons' judgments of sentence).

Pa.R.A.P. 341, Official Note.

In Walker, our Supreme Court construed the above-language as 

constituting “a bright-line mandatory instruction to practitioners 

to file separate notices of appeal.” Walker, 185 A.3d at 

976-[9]77. Therefore, the Walker Court held that “the proper 

practice under Rule 341(a) is to file separate appeals from an 

order that resolves issues arising on more than one docket. The 

failure to do so requires the appellate court to quash the appeal.” 

Id. at 977. However, the Court tempered its holding by making 

it prospective [and applicable only to appeals filed after June 1, 

2018], recognizing that “[t]he amendment to the Official Note to 

Rule 341 was contrary to decades of case law from this Court and 

the intermediate appellate courts that, while disapproving of the 

practice of failing to file multiple appeals, seldom quashed appeals 

as a result.” Id. Accordingly, the Walker Court directed that “in 

future cases Rule 341 will, in accordance with its Official Note, 

require that when a single order resolves issues arising on more 

than one lower court docket, separate notices of appeal must be 

filed. The failure to do so will result in quashal of the appeal.” Id.

Commonwealth v. Williams, 206 A.3d 573, 575–576 (Pa. Super. 2019) 

(emphasis in original).

Herein, Appellant filed his pro se notice of appeal on August 8, 2018. 

Therefore, the rule announced in Walker governs. Because Appellant filed a 

single notice of appeal, rather than two separate notices of appeal at each trial 

court docket in accordance with Pa.R.A.P. 341, it appears the August 8, 2018 

notice is subject to quashal. Recent developments in our case law, however, 
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suggest a more flexible approach to application of Walker where certain 

circumstances are present.

In Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019), 

this Court declined to quash an appeal listing two docket numbers because 

the trial court misinformed Stansbury that he could file a single notice of 

appeal. We determined that the trial court’s failure to advise Stansbury 

properly regarding his appellate rights amounted to a “breakdown in the court 

system” and, accordingly, we excused his failure to comply with Walker. 

Stansbury, 219 A.3d at 160; see also Commonwealth v. Larkin, 235 A.3d 

350, 354 (Pa. Super. 2020) (en banc) (“We agree with the panel in Stansbury

and reaffirm its holding that we may overlook the requirements of Walker

where [] a breakdown occurs in the court system, and a defendant is 

misinformed or misled regarding his appellate rights.”). In Larkin, an en banc 

panel of this Court favorably cited our prior decision in Commonwealth v. 

Patterson, 940 A.2d 493, 498 (Pa. Super. 2007), where we observed that

the “courts of this Commonwealth have held that a court breakdown occurred 

in instances where the trial court, at the time of sentencing, either failed to 

advise [an appellant] of his post-sentence and appellate rights or misadvised 

him.” Larkin, 235 A.3d at 354, citing Patterson, 940 A.2d at 498. In this 

case, the PCRA court did not advise Appellant of the need to file separate 

notices of appeal, either at the evidentiary hearing when it first declared its 

intent to dismiss the petition or in its formal written order filed on August 17, 
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2018. As such, we are persuaded that a breakdown in the court system 

permits us to excuse Appellant’s failure to comply with Walker.

Turning to the merits of Appellant’s claims, our review of his brief 

confirms that the only issues developed therein assert that PCRA counsel’s 

failure to address the facts and circumstances surrounding trial counsel’s use 

of an entrapment defense effectively denied Appellant the benefit of counsel 

on his first petition for collateral relief. More specifically, Appellant cites the 

following factors in support of his request for remand and the reinstatement 

of his right to file a first PCRA petition:

PCRA counsel failed, by her own admission, to review the case 

fully with Appellant prior to the PCRA hearing. PCRA counsel failed 

to amend [Appellant’s] pro se PCRA petition. PCRA counsel also 

failed to adequately address the issues that had been raised in 

[Appellant’s] pro se PCRA petition at [Appellant’s] PCRA hearing.

Appellant’s Brief at 18 (superfluous capitalization omitted).

We are unable to undertake appellate review of these claims because 

they were not properly raised and preserved before the PCRA court. There is 

no precedent (and Appellant cites none) for awarding collateral relief on 

appeal where an issue such as PCRA counsel’s effectiveness has not been first 

developed and addressed before the PCRA court. See Commonwealth v. 

Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc) (thoroughly reviewing 

treatment history of appellate claims challenging competence of PCRA counsel 

and concluding that “claims of PCRA counsel's ineffectiveness may not be 

raised for the first time on appeal”); see also Commonwealth v. Ford, 44 
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A.3d 1190 (Pa. Super. 2012) (collecting cases). Here, no petition alleging 

PCRA counsel’s ineffectiveness was filed before the PCRA court, no record was 

developed on this issue, and we have no PCRA court findings of fact and 

conclusions of law to consider.4 Moreover, under these circumstances, 

Appellant’s request for appellate reinstatement of his right to file an initial 

PCRA petition (for which he would enjoy a rule-based right to counsel) itself 

implicates the jurisdictional constraints of the PCRA. Cf. Commonwealth v. 

Ligons, 971 A.2d 1125, 1159 (Pa. 2009) (plurality) (observing that appellate 

review of claims alleging PCRA counsel’s ineffectiveness not presented to PCRA 

court overlooks “the PCRA’s express jurisdictional and serial petition 

limitations”). Again, we do not have the benefit of advocacy and a developed 

trial court record with respect to such issues. While we are aware of the 

difficult position into which current counsel was placed when he became 

attached to Appellant’s collateral relief challenge at such a late stage,5 we are 

constrained to deny relief.

____________________________________________

4 Attorney Lang attached a motion for remand to the concise statement he 

filed with the PCRA court on April 1, 2020. That motion included several 

references to statements Attorney Mills placed on the record at Appellant’s 

PCRA hearing. In its opinion, however, the PCRA court repeatedly stated that 

the motion for remand failed to specify the basis for Appellant’s claims of 

ineffectiveness against Attorney Mills or how any alleged ineffectiveness 

prejudiced Appellant. See PCRA Court Opinion, 4/27/20, at 9-10.

5 Recall that current counsel entered his appearance on behalf of Appellant 

after the court conducted the PCRA hearing and, indeed, after the operative 

notice of appeal was filed. 
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/2021