J-S10006-19

2019 PA Super 86

____________________________________

* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH KELSEY 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3619 EDA 2017

Appeal from the PCRA Order October 13, 2017

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

No(s): CP-51-CR-0004554-2010

BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

OPINION BY COLINS, J.: FILED MARCH 22, 2019

Appellant, Joseph Kelsey, appeals, pro se, from the order of the Court 

of Common Pleas of Philadelphia County that dismissed his first petition filed 

under the Post Conviction Relief Act (“PCRA”)1 without a hearing. For the 

reasons set forth below, we vacate the PCRA court’s order and remand this 

case for appointment of new PCRA counsel.

This matter arises out of a robbery and fatal shooting in a dispute over 

a marijuana sale. On February 25, 2014, a jury convicted Appellant of seconddegree murder, robbery, criminal conspiracy, carrying a firearm without a 

license, carrying a firearm in public in Philadelphia, possession of an 

instrument of crime, and intimidation of a witness.2 The trial court sentenced 

Appellant to life imprisonment without parole for the second-degree murder 

____________________________________________

1 42 Pa.C.S. §§ 9541–9546.

2 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), 903 (3701(a)(1)(i) related),

6106(a)(1), 6108, 907(a), and 4952(a)(1), respectively.
J-S10006-19

- 2 -

conviction and a consecutive sentence of five to ten years’ imprisonment for 

the witness intimidation conviction. The trial court also imposed concurrent 

sentences of five to ten years’ imprisonment for both the robbery and 

conspiracy convictions, a concurrent sentence of two and one-half to five years 

imprisonment for carrying a firearm without a license, and no further penalty

for the carrying a firearm in public and possession of an instrument of crime 

convictions. 

Appellant’s trial counsel filed a direct appeal challenging the sufficiency 

of the evidence and challenging the robbery sentence as barred by merger. 

On June 23, 2015, this Court affirmed the judgment of sentence with respect 

to all of the convictions other than robbery and vacated the concurrent robbery 

sentence, without remand to the trial court, on the ground that the robbery 

conviction merged for sentencing purposes with the second-degree murder 

conviction. Commonwealth v. Kelsey, 122 A.3d 1141 (Pa. Super. 2015) 

(unpublished memorandum). Trial counsel filed a petition for allowance of 

appeal, which the Pennsylvania Supreme Court denied on February 1, 2016. 

Commonwealth v. Kelsey, 131 A.3d 490 (Pa. 2016).

On February 8, 2017, Appellant filed a timely pro se PCRA petition. In 

this prolix petition, Appellant listed over 20 issues, including claims that the 

Commonwealth failed to comply with Pa.R.Crim.P. 600, that three

Commonwealth witnesses gave false testimony, that the Commonwealth 

withheld exculpatory evidence, that the charging documents and arrest 

warrant were defective, and that trial counsel was ineffective. PCRA Petition 
J-S10006-19

- 3 -

at 2, 4, 7-8. Appellant’s claims of ineffectiveness of trial counsel included 

claims that trial counsel failed to assert the above arguments, that trial 

counsel misrepresented to Appellant’s family that Appellant was going to plead 

guilty, that trial counsel failed to inform Appellant of a plea offer, that trial 

counsel failed to inform Appellant of his right to testify, that trial counsel failed 

to interview witnesses and retain experts, that trial counsel failed to file a 

motion to suppress, that trial counsel failed to obtain the results of 

Commonwealth tests on evidence, that trial counsel failed to investigate 

Appellant’s mental health status and the mental health status of witnesses, 

and that trial counsel failed to request jury instructions on defenses to 

accomplice liability and conspiracy and on the lesser included offenses of 

voluntary manslaughter and involuntary manslaughter. Id.

In March 2017, the PCRA court appointed counsel to represent Appellant 

with respect to his PCRA petition. On August 18, 2017, PCRA counsel filed a 

motion to withdraw and a no-merit letter pursuant to Commonwealth v. 

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

213 (Pa. Super. 1988) (en banc). In his no-merit letter, PCRA counsel 

correctly stated that the PCRA petition was timely filed, briefly discussed

Appellant’s Rule 600 claim, the claims that two Commonwealth witnesses 

committed perjury, the claim that trial counsel misrepresented to Appellant’s 

family that Appellant was going to plead guilty, and the claims concerning the 

charging documents and Appellant’s arrest, and stated his conclusions that 

those issues were meritless. Turner/Finley Letter at 4-6. PCRA counsel also 
J-S10006-19

- 4 -

discussed in his no-merit letter the legal standard applicable to claims of 

ineffective assistance of counsel, stated a single sentence conclusion that 

Appellant’s “rights were vigilantly protected” by trial counsel, and represented 

that he found no issues of merit in his independent review of the record. Id.

at 2-3, 6-7. 

On September 12, 2017, the PCRA court issued a notice pursuant to 

Pa.R.Crim.P. 907 of its intent to dismiss Appellant's petition without a hearing. 

Appellant filed a timely response to the Rule 907 notice in which he specifically

asserted that PCRA counsel’s no-merit letter failed to address all of the issues 

in his PCRA petition, asserted that PCRA counsel was ineffective, and sought 

to amend the PCRA petition. Response to Rule 907 Notice at 1-2, 10-11, 14-

16, 26. On October 13, 2017, the PCRA court dismissed Appellant’s PCRA 

petition as lacking merit.3 

Appellant timely filed this pro se appeal from the dismissal of his PCRA 

petition. In his Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal, Appellant, in addition to raising issues concerning the merits of his 

PCRA petition, reiterated his claim that he had been denied effective 

assistance of counsel on the PCRA petition and that PCRA counsel did not 

conduct a sufficient review and investigation of the record and the claims that 

Appellant sought to raise. Rule 1925(b) Statement at 4. In its opinion, the 

____________________________________________

3 Although only an order dismissing the PCRA petition is in the record, the 

docket entries state that the PCRA court on the same date granted PCRA 

counsel leave to withdraw. 
J-S10006-19

- 5 -

PCRA court made its own analysis of claims raised in the PCRA petition, 

including claims not addressed by PCRA counsel, but did not address the 

issues of the sufficiency of PCRA counsel’s no-merit letter and his 

representation of Appellant. 

In his brief before this Court, Appellant raises 16 issues with respect to 

merits of his PCRA petition and also raises the following issue with respect to 

PCRA counsel:

Was the Appellant prejudiced and/or deprived fundamental and 

substantive right(s) to the assistance of counsel on his first PCRA, 

a fair opportunity to have issues addressed in accordance with the 

Post Conviction Relief Act when appointed PCRA counsel ... filed a 

no-merit letter that did not meet the requirements in filing such 

letter, and the PCRA court subsequently dismissed said Petition 

without a hearing?

Appellant’s Br. at 7, 55-59. The Commonwealth does not concede that any of 

the challenges to Appellant’s convictions in the PCRA petition are meritorious, 

but contends that PCRA counsel’s no-merit letter was inadequate and that the 

PCRA court’s order must therefore be vacated and this matter remanded for 

appointment of new PCRA counsel. We agree.

4

We review the denial of a PCRA petition to determine whether the record 

supports the PCRA court’s findings and whether its order is free of legal error. 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014); Commonwealth 

v. Cherry, 155 A.3d 1080, 1082 (Pa. Super. 2017).

____________________________________________

4 Because we conclude that PCRA court’s order must be vacated on this 

ground, we do not address any of the other issues raised by Appellant in this 

appeal.
J-S10006-19

- 6 -

The PCRA petition here is a first PCRA petition. A convicted defendant 

has a right under the Rules of Criminal Procedure to the assistance of counsel 

on a first PCRA petition. Pa.R.Crim.P. 904(C); Cherry, 155 A.3d at 1082;

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en 

banc). “The indigent petitioner’s right to counsel must be honored regardless 

of the merits of his underlying claims, even where those claims were 

previously addressed on direct appeal, so long as the petition in question is 

his first.” Cherry, 155 A.3d at 1082 (quoting Commonwealth v. Powell, 

787 A.2d 1017 (Pa. Super. 2001)).

If PCRA counsel seeks to withdraw on the ground that the issues raised 

by the PCRA petitioner are without merit, he must satisfy the following 

requirements: he must file a sufficient no-merit letter, send the PCRA 

petitioner copies of the application to withdraw and no-merit letter, and advise 

the PCRA petitioner of his right to proceed pro se or with a privately retained 

attorney. Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 

2016); Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012). 

The no-merit letter must set forth: 1) the nature and extent of counsel’s

review of the case; 2) each issue that the petitioner wishes to raise on appeal; 

and 3) counsel’s explanation of why each of those issues is meritless. 

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009); Turner, 544 

A.2d at 928-29; Rykard, 55 A.3d at 1184; Commonwealth v. Glover, 738 

A.2d 460, 464 (Pa. Super. 1999). Where PCRA counsel’s no-merit letter does 

not discuss all of the issues that the convicted defendant has raised in a first
J-S10006-19

- 7 -

PCRA petition and explain why they lack merit, it does not satisfy these 

mandatory requirements and dismissal of the PCRA petition without requiring 

counsel to file an amended PCRA petition or a further, adequate no-merit letter 

is a deprivation of the right to counsel on the PCRA petition. Commonwealth 

v. Karanicolas, 836 A.2d 940, 945-47 (Pa. Super. 2003); Glover, 738 A.2d 

at 464-65; Commonwealth v. Mosteller, 633 A.2d 615, 617-18 (Pa. Super. 

1993). 

Here, it is clear that PCRA counsel’s no-merit letter was seriously 

deficient. PCRA counsel’s no-merit letter discussed only a subset of the issues 

that Appellant stated in his PCRA petition. Notably, PCRA counsel’s no-merit 

letter neither listed nor discussed most of Appellant’s claims that trial counsel 

was inadequate, including claims that trial counsel failed: to inform Appellant 

of a plea offer; to inform Appellant of his right to testify; to interview witnesses 

and retain experts; to file a motion to suppress; to obtain the results of 

Commonwealth tests on evidence; to investigate Appellant’s mental health 

status and the mental health status of witnesses; and to request certain jury 

instructions.5 While the inadequacy of PCRA counsel’s no-merit letter is

waived if not raised before the PCRA court and this Court, Pitts, 981 A.2d at 

879-80 & nn.3 & 4, Appellant has fully raised and preserved this issue at all 

____________________________________________

5

Indeed, PCRA counsel’s no-merit letter not only does not discuss most of 

Appellant’s ineffective assistance of counsel claims, it also misidentifies 

Appellant’s trial counsel as another attorney who did not represent Appellant. 

Turner/Finley Letter at 1, 6. 
J-S10006-19

- 8 -

stages of this proceeding and has specifically asserted and briefed this issue 

in this appeal. 

We recognize that the PCRA court conducted an independent review of 

the claims that it believed were asserted in the PCRA petition and that its 

review went beyond PCRA counsel’s inadequate no-merit letter. The error 

here, however, is the denial of the assistance of counsel, not the sufficiency 

of the PCRA court’s opinion or whether Appellant’s claims in his PCRA petition 

are meritorious. Even where a pro se first PCRA petition appears on its face 

to be meritless, the defendant is entitled to representation by counsel before 

that determination is made. Commonwealth v. Ramos, 14 A.3d 894, 895-

96 (Pa. Super. 2011); Commonwealth v. Stout, 978 A.2d 984, 988 (Pa.

Super. 2009). 

Because Appellant did not waive his right to representation by counsel 

and PCRA counsel neither represented Appellant on the merits of the PCRA 

petition nor filed a sufficient no-merit letter that addressed all of Appellant’s 

claims, the PCRA court’s dismissal of Appellant’s PCRA petition must be 

vacated and remand to the PCRA court for appointment of new PCRA counsel 

is required. Cherry, 155 A.3d at 1083; Glover, 738 A.2d at 465; Mosteller, 

633 A.2d at 617-18. On remand, Appellant’s new counsel shall be permitted 

to file an amended PCRA petition or, if counsel concludes in the exercise of his 

or her professional judgment that the issues raised in the PCRA proceeding 

are without merit, counsel may file an adequate no-merit letter that addresses 
J-S10006-19

- 9 -

all of the issues raised in Appellant’s PCRA petition and move to withdraw. 

Cherry, 155 A.3d at 1083; Glover, 738 A.2d at 465. 

Order vacated. Case remanded with instructions to appoint new PCRA 

counsel. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/19