J-S14009-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

TYRIK VERNON, :

:

Appellant : No. 3592 EDA 2013

Appeal from the PCRA Order November 21, 2013,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0206571-2004

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.: FILED MARCH 24, 2015

Appellant, Tyrik Vernon (“Vernon”), appeals from the order dated 

November 21, 2013 dismissing his petition for relief pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. In accordance 

with the request of the PCRA court, we remand this case to the trial court for 

an evidentiary hearing.

On August 30, 2004, a jury found Vernon guilty of robbery, 

18 Pa.C.S.A. § 3701, aggravated assault, 18 Pa.C.S.A. § 2702, attempted 

murder, 18 Pa.C.S.A. § 901, 2502, and carrying a firearm without a license, 

18 Pa.C.S.A. § 6106. On October 19, 2004, the trial court sentenced him to 

an aggregate term of incarceration of not less than ten and one half years 

and no more than twenty-one years. On October 21, 2004, Vernon filed an 
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appeal with this Court, but we dismissed the appeal for the failure of 

Vernon’s counsel to file an appellate brief.

On March 28, 2011, Vernon filed a PCRA petition claiming that no 

action had been taken on a PCRA petition that he filed in 2006. On 

November 9, 2012, appointed counsel filed an amended PCRA petition, 

contending that trial counsel had been ineffective in connection with 

Vernon’s direct appeal. On November 21, 2013, the PCRA court dismissed 

Vernon’s PCRA petition without an evidentiary hearing. In its subsequent 

written opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of 

Appellate Procedure, however, the PCRA court acknowledges that it erred in 

dismissing Vernon’s petition without an evidentiary hearing and requests 

that this Court remand the case for that purpose. The PCRA court sets forth 

the following factual basis for its request:

Throughout current PCRA proceedings, [Vernon and 

his appointed counsel] argued that Vernon’s March 

28, 2011 PCRA petition was a supplement to a timely 

pro se petition filed on August 21, 2006. ... In 

support of Vernon’s claim, [appointed counsel] 

provided a copy of the sixth page of a pro se PCRA 

petition. This page was time stamped by 

Philadelphia’s PCRA Unit on August 21, 2006. A 

hand-written note appears on this page which 

[Vernon] asserts was written by a member of the 

Court’s PCRA Unit staff as follows: “The attached 

was not given back to the person who delivered your 

Motion for Post Conviction Collateral Relief. He was 

given pages 1 thru 5 with the time stamped dated of 

8-21-06. Attached are pages 6 thru 9.” (See 

attached Document A). In support of his Amended 

PCRA filed on November 9, 2012 and related filings, 
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[appointed counsel] submitted an Affidavit signed by 

[Vernon] stating that he filed a pro se PCRA petition 

on August 21, 2006 to have his appellate rights 

reinstated, but no lawyer was appointed, and no 

judge acted on the petition. (See attached 

Document B). 

Trial Court Opinion, 6/3/2014, at 2. The PCRA court further notes that 

Vernon’s undocketed 2006 PCRA petition cannot be located and that the trial 

judge assigned to the case at that time is now deceased. Id. The PCRA 

court asks this Court to remand the case for an evidentiary hearing because 

“[d]ismissal on grounds of untimeliness was an unjust disposition of this 

case,” and because “I am troubled that a clerical error may have caused a 

waiver of a timely filed PCRA that was indeed undocketed and unaddressed 

for nearly five years.” Id. 

Rule 908(A)(2) of the Pennsylvania Rules of Criminal Procedure 

provides that a PCRA court shall order an evidentiary hearing when a PCRA 

petition raises an issue of material fact. Pa.R.Crim.P. 908(A)(2). Because 

the PCRA court now finds that Vernon’s current PCRA petition raises an issue 

of material fact regarding the filing of a prior timely petition in 2006,1the 

 

1

 In its appellate brief, the Commonwealth points out that the “timestamped sheet of paper” attached to Vernon’s PCRA petition contains no 

docket number, no reference to Vernon by name, and no other identifying 

criteria. Commonwealth’s Brief at 4. While true, we nevertheless agree with 

the PCRA court that Vernon has offered a sufficient basis to raise an issue of 

material fact regarding whether he filed a PCRA petition in 2006. The 

shortcomings of Vernon’s supporting documentation will be weighed and 

resolved at the evidentiary hearing on remand. 
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PCRA court’s request for a remand to conduct an evidentiary hearing is both 

reasonable and appropriate. 

Accordingly, the order dated November 21, 2013 dismissing Vernon’s 

March 28, 2011 PCRA petition is vacated. This case is hereby remanded to 

the PCRA court for an evidentiary hearing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2015