J-S52038-14

_____________________________

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DEREK ADAM BANKS

Appellant No. 889 EDA 2014

Appeal from the PCRA Order February 25, 2014

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0004267-2007;

CP-15-CR-0004269-2007; CP-15-CR-0004270-2007;

CP-15-CR-0004271-2007;CP-15-CR-0004272-2007

BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 06, 2015

Appellant, Derek Adam Banks, appeals pro se from the order entered 

in the Chester County Court of Common Pleas, which denied and dismissed 

his petition filed under the Post Conviction Relief Act (“PCRA”).1 We vacate 

and remand for further proceedings.

The relevant facts and procedural history of this case are as follows. 

In July 2007, a confidential informant (“C.I.”) assisted Embreeville State 

Police with an investigation into Appellant’s drug related activities. During 

the course of the investigation, the C.I. engaged in four controlled drug buys 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
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with Appellant. The first controlled buy took place on August 1, 2007, in 

which Appellant sold the C.I. 4.1 grams of cocaine in exchange for three 

hundred dollars ($300.00). On August 8, 2007, a second controlled buy 

occurred in which Appellant sold the C.I. 14.2 grams of cocaine in exchange 

for six hundred dollars ($600.00). A third controlled buy took place on 

August 16, 2007, in which Appellant sold the C.I. 13.7 grams of cocaine in 

exchange for six hundred dollars ($600.00). The fourth controlled buy 

occurred on September 11, 2007, in which Appellant sold the C.I. 97.7 

grams of cocaine in exchange for three thousand, six hundred dollars 

($3,600.00). Immediately following the September 11, 2007 controlled buy, 

police executed a search warrant on Appellant’s home and recovered, inter 

alia, a digital scale with white residue, a large amount of cash, 14.2 grams 

of cocaine, and drug paraphernalia. 

Police arrested Appellant, and the Commonwealth charged him with 

various drug-related crimes at five separate dockets.2 Specifically, the 

Commonwealth charged Appellant with the following offenses: at docket no. 

CP-15-CR-0004267-2007 (“docket 4267-2007”), delivery of a controlled 

substance and criminal use of a communication facility, in connection with 

the August 8, 2007 controlled buy; at docket no. CP-15-CR-0004269-2007 

(“docket 4269-2007”), delivery of a controlled substance and criminal use of 

____________________________________________

2 The court consolidated the cases on November 5, 2007. 
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a communication facility, in connection with the August 1, 2007 controlled 

buy; at docket no. CP-15-CR-0004270-2007 (“docket 4270-2007”), delivery 

of a controlled substance and criminal use of a communication facility, in 

connection with the September 11, 2007 controlled buy; at docket no. CP15-CR-0004271-2007 (“docket 4271-2007”), three counts of possession of a 

controlled substance with the intent to deliver (“PWID”), and one count of 

possession of drug paraphernalia, in connection with the September 11, 

2007 search of Appellant’s residence; and at docket no. CP-15-CR-0004272-

2007 (“docket 4272-2007”), delivery of a controlled substance and criminal 

use of a communication facility, in connection with the August 16, 2007 

controlled buy. 

Appellant proceeded to a jury trial on December 1, 2008. On 

December 3, 2008, the jury convicted Appellant of one count of PWID, three 

counts of delivery of a controlled substance, three counts of criminal use of a 

communication facility, and one count of possession of drug paraphernalia.3 

The court sentenced Appellant to an aggregate term of twenty-one (21) to 

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3

The jury convicted Appellant on all counts, except for the two counts at 

docket 4267-2007 (related to the August 8, 2007 controlled buy). The jury 

was unable to reach a verdict as to the delivery of a controlled substance 

charge at that docket; and found Appellant not guilty of the criminal use of a 

communication facility charge at that docket. On March 5, 2009, the 

Commonwealth asked the court to enter nolle prosequi on the delivery of a 

controlled substance charge at docket 4267-2007.
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forty-six (46) years’ imprisonment on March 4, 2009.4 On March 18, 2009, 

Appellant timely filed a notice of appeal, but this Court dismissed the appeal 

on May 12, 2009, for failure to file a docketing statement. 

On April 20, 2010, Appellant timely filed a pro se PCRA petition, and 

the court appointed counsel the next day. Counsel filed an amended PCRA 

petition on May 19, 2011, requesting a hearing to determine whether 

appellate counsel failed to perfect Appellant’s direct appeal rights. On May 

26, 2011, with agreement from the Commonwealth, the court reinstated 

____________________________________________

4 Despite some references in the record that the court imposed a maximum 

term of forty-two (42) years’ imprisonment, our review of the record 

confirms the court imposed a maximum sentence of forty-six (46) years’ 

imprisonment. Specifically, at docket 4269-2007, the court sentenced 

Appellant to 3-10 years’ imprisonment for the delivery of a controlled 

substance conviction and 1-2 years’ imprisonment for the criminal use of a 

communication facility conviction; at docket 4270-2007, the court sentenced 

Appellant to 5-10 years’ imprisonment for the delivery of a controlled 

substance conviction and 1-2 years’ imprisonment for the criminal use of a 

communication facility conviction; at docket 4271-2007, the court sentenced 

Appellant to 5-10 years’ imprisonment for the PWID conviction and imposed 

no further penalty for the possession of drug paraphernalia conviction; and 

at docket 4272-2007, the court sentenced Appellant to 5-10 years’ 

imprisonment for the delivery of a controlled substance conviction and 1-2 

years’ imprisonment for the criminal use of a communication facility 

conviction. The court imposed all sentences consecutively. Additionally, at 

docket 4269-2007, the court imposed restitution in the amount of three 

hundred dollars ($300.00) to be paid to the Commonwealth for money 

expended during the August 1, 2007 controlled buy; at docket 4270-2007, 

the court imposed restitution in the amount of three thousand, six hundred 

dollars ($3,600.00) to be paid to the Commonwealth for money expended 

during the September 11, 2007 controlled buy; and at docket 4272-2007, 

the court imposed restitution in the amount of six hundred dollars ($600.00) 

to be paid to the Commonwealth for money expended during the August 16, 

2007 controlled buy. 
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Appellant’s direct appeal rights nunc pro tunc.

5

 On June 20, 2011, Appellant 

timely filed a nunc pro tunc notice of appeal. This Court affirmed Appellant’s 

judgment of sentence on March 16, 2012, and our Supreme Court denied 

allowance of appeal on September 4, 2012. See Commonwealth v. 

Banks, 47 A.3d 1246 (Pa.Super. 2012), appeal denied, 616 Pa. 666, 51 

A.3d 837 (2012).

Appellant timely filed a pro se PCRA petition on September 17, 2013. 

The court appointed counsel (“PCRA counsel”) on October 3, 2013. On 

December 30, 2013, PCRA counsel filed a petition to withdraw and a 

Turner/Finley6“no merit” letter. Appellant filed a pro se amended PCRA 

petition on January 9, 2014, which the court declined to consider because 

Appellant was still represented by PCRA counsel.7 On January 22, 2014, the 

PCRA court determined Appellant had one meritorious issue concerning

eligibility for the Recidivism Risk Reduction Incentive (“RRRI”) program, so 

____________________________________________

5 Appellant did not mention or request reinstatement of his post-sentence 

rights nunc pro tunc in his amended petition. 

6 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 

7

The court relied on the general rule set forth in Commonwealth v. Ellis, 

534 Pa. 176, 626 A.2d 1137 (1993), which held that there is no 

constitutional right to hybrid representation at trial or on appeal; thus, this 

Court will not review pro se briefs filed by represented appellants. (See

Rule 907 Notice Order and Opinion, filed January 22, 2014, at 3-4 n.5.) The 

record is unclear whether the court forwarded Appellant’s January 9, 2014 

pro se filing to PCRA counsel.
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the court modified Appellant’s sentence to include RRRI eligibility;8 with 

respect to Appellant’s remaining claims, the court issued Pa.R.Crim.P. 907 

notice of intent to dismiss Appellant’s petition without a hearing. The court’s 

Rule 907 notice order and opinion expressly gave Appellant twenty (20) days 

to file a response. On January 27, 2014, Appellant filed a pro se response to 

the court’s Rule 907 notice order and opinion. Notwithstanding the language 

in the Rule 907 notice order and opinion, which allowed Appellant an 

opportunity to respond, on February 7, 2014, the court dismissed Appellant’s 

pro se response (because Appellant was still represented by PCRA counsel), 

and directed the Clerk of Courts to forward a copy of the pro se filing to 

PCRA counsel.9 On February 25, 2014, the PCRA court dismissed Appellant’s 

petition and granted PCRA counsel’s request to withdraw. Appellant filed a 

second pro se response to the court’s Rule 907 notice order and opinion; the 

response was docketed on February 28, 2014, but dated February 18, 2014. 

The PCRA court dismissed the response as moot on March 4, 2014, based on 

the court’s earlier denial of PCRA relief. 

Appellant timely filed a pro se notice of appeal on March 18, 2014, and 

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8 The court asked PCRA counsel to calculate Appellant’s RRRI sentence, and 

to submit a copy of Appellant’s RRRI sentence to the court within ten (10) 

days. On February 18, 2014, the court entered an order stating Appellant’s 

aggregate RRRI minimum sentence equals two hundred and twenty-seven 

(227) months’ imprisonment. 

9

In its February 7, 2014 order, the court again relied on Ellis, supra to 

support dismissal of Appellant’s pro se filing.
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a voluntary concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). On April 15, 2014, the PCRA court filed its opinion per 

Pa.R.A.P. 1925(a) asking this Court to quash or dismiss the appeal because 

Appellant erroneously listed the order appealed from as dated March 15, 

2014; the PCRA court contended no court action took place on March 15, 

2014. Based on the PCRA court’s suggestion to quash or dismiss the appeal, 

the court declined to review any of Appellant’s issues in its opinion but 

indicated it would file a supplemental opinion if this Court so directed. 

On August 19, 2014, this Court determined it was obvious from the 

face of the record that Appellant meant to appeal the February 25, 2014 

order denying PCRA relief, and Appellant’s reference to a March 15, 2014 

order was merely an inadvertent error. Because Appellant filed his notice of 

appeal within thirty days of the order denying PCRA relief, this Court 

declined to quash Appellant’s appeal. Instead, this Court retained 

jurisdiction and remanded the case to the PCRA court to issue a 

supplemental opinion addressing all properly preserved issues raised in 

Appellant’s Rule 1925(b) statement. The PCRA court subsequently issued its 

supplemental opinion, simply directing this Court to review its earlier opinion 

in support of Rule 907 notice order.10 

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10 The court’s supplemental Rule 1925(a) opinion states: “The trial court 

respectfully directs the appellate court to its January 22, 2014 ‘Notice of 

Intent to Dismiss PCRA Petition Pursuant to Pa.R.Crim.P. 907(1)’ for the 

(Footnote Continued Next Page)
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Appellant raises the following issues for our review: 

WHETHER [THE] TRIAL COURT/TRIAL COUNSEL/AND THE 

COMMONWEALTH [ERRED] BY FAILING TO CHARGE THREE 

OTHERS INVOLVED IN THE MATTER[?]

WHETHER THE TRIAL COURT/COUNSEL FAILED TO MERGE 

[APPELLANT’S] SENTENCE[?]

WHETHER [THE] TRIAL COURT/COUNSEL [ERRED] BY 

FAILING TO RECOMMEND [APPELLANT] FOR RRRI[?11]

WAS [PCRA] COUNSEL INEFFECTIVE FOR FAILING TO 

MAKE AN ATTEMPT TO COMMUNICATE OR REVIEW 

[APPELLANT’S] ISSUES, SHOWING NO DILIGENCE WHILE 

DISPLAYING INCOMPETENCE AND/OR AN ACT OF 

FRAUD[?]

(Appellant’s Brief at 4). 

For purposes of disposition, we combine Appellant’s issues. Appellant 

argues the Commonwealth committed “prejudicial error” by failing to charge 

the other individuals present at Appellant’s residence at the time of his 

arrest. Appellant maintains the presence of others at the time of his arrest 

casts doubt on whether Appellant was the person in possession of the drugs, 

and the court denied him a fair trial by depriving the jury of this evidence. 

(Footnote Continued) _______________________

court’s reasoning herein. For the reasons set forth in that January 22, 2014 

Notice, the trial court respectfully requests that its Order of February 25, 

2014 dismissing [Appellant’s] Post Conviction Relief Act claims, subject to 

the modification of sentence set forth in the court’s Order of February 18, 

2014, be affirmed.” (Supplemental Rule 1925(a) Opinion, filed August 29, 

2014, at 1) (internal footnote omitted).

11 Notwithstanding the phrasing of this question presented, Appellant 

acknowledges that the court modified his sentence to include eligibility for 

the RRRI program. Appellant now challenges the court’s RRRI calculation. 
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Additionally, Appellant asserts the trial court abused its discretion when it 

imposed consecutive sentences at all dockets. Appellant further contends 

the court should have merged Appellant’s sentences for delivery of a 

controlled substance, criminal use of a communication facility, and 

possession of drug paraphernalia with Appellant’s PWID sentence, because 

these convictions stemmed from one continuous criminal episode, and the 

former crimes constitute lesser-included offenses of PWID. 

Appellant also claims the court and PCRA counsel miscalculated 

Appellant’s RRRI sentences as to the convictions on which the court imposed 

a term of five (5) to ten (10) years’ imprisonment. As well, Appellant 

complains the court failed to award Appellant credit for time served. 

Further, Appellant maintains PCRA counsel was ineffective for failing to 

communicate or review any of Appellant’s issues; and PCRA counsel violated 

the Pennsylvania Rules of Professional Conduct because he did not make any 

effort to keep Appellant informed of the status of his case. Appellant 

concludes the court’s denial of Appellant’s PCRA petition was improper, and 

this Court should grant appropriate relief. For the reasons that follow, 

Appellant is entitled to some relief.

Preliminarily, we observe that our ability to reach the merits of 

Appellant’s issues is severely impaired for the following reasons. First, 

various documents necessary to our review are missing from the certified 

record. The record does not contain Appellant’s pro se PCRA petition filed on 
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September 17, 2013, or PCRA counsel’s Turner/Finley “no merit” letter 

filed on December 30, 2013. Thus, we are unable to review Appellant’s 

claim that PCRA counsel failed to address any of Appellant’s issues presented 

in his pro se PCRA petition (as alleged on appeal), or to confirm whether 

Appellant preserved his claims on appeal before the PCRA court. 

Second, the record shows that the PCRA court did not consider in the 

first instance most of Appellant’s current claims, and the PCRA court’s 

opinion provides no help. In its supplemental Rule 1925(a) opinion, the 

PCRA court merely directed us to its earlier Rule 907 notice order and 

opinion, which does not address any of Appellant’s issues on appeal, with 

the exception of Appellant’s merger claim.12 Significantly, our remand order 

filed on August 19, 2014, instructed the PCRA court to issue an opinion as to 

all of Appellant’s claims raised in his Rule 1925(b) statement, to the extent 

they were properly preserved. Appellant raised all claims presented on 

appeal in his Rule 1925(b) statement. (See Rule 1925(b) Statement, filed 

March 18, 2014, at 1.) 

Further, Appellant first complained of PCRA counsel’s ineffectiveness in 

his January 27, 2014 pro se response to Rule 907 notice order and opinion, 

alleging PCRA counsel failed to contact Appellant after his appointment, did 

____________________________________________

12 The court’s Rule 907 notice order and opinion disposes of Appellant’s 

merger claim as lacking merit in one paragraph, without citation to any legal 

authority. (See Rule 907 Notice Order and Opinion at 13.) 
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not address the issues Appellant wanted to pursue in counsel’s 

Turner/Finley letter, and PCRA counsel’s failure to communicate with 

Appellant violated the Pennsylvania Rules of Professional Conduct. The 

court’s Rule 907 notice order and opinion, which naturally predated 

Appellant’s pro se response, obviously could not have addressed these 

complaints. Likewise, the court’s Rule 907 notice order and opinion could 

not have addressed Appellant’s current challenge to his RRRI calculation, 

because the court did not award Appellant RRRI eligibility until January 22, 

2014 (the same date the court issued its Rule 907 notice order and opinion), 

and did not calculate Appellant’s RRRI sentence until February 18, 2014. 

Therefore, the court’s supplemental Rule 1925(a) opinion (directing us to the 

court’s previous Rule 907 notice order and opinion) is plainly insufficient to 

aid appellate review. See Commonwealth v. Dennis, 597 Pa. 159, 950 

A.2d 945 (2008) (explaining PCRA court should provide legally robust 

discussion, complete with clear findings of fact where required, to facilitate 

appellate review; remanding for supplemental opinion sufficiently complete 

to enable meaningful appellate review). See also Commonwealth v. 

Kenney, 557 Pa. 195, 203, 732 A.2d 1161, 1165 (1999) (stating this Court 

cannot evaluate claims that PCRA court did not consider; if record is 

insufficient to adjudicate petitioner’s allegations, this Court should remand 

for further inquiry). 

Third, the PCRA court’s decision, not to review Appellant’s January 9, 
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2014 pro se amended PCRA petition and January 27, 2014 pro se response 

to the court’s Rule 907 notice order and opinion, was erroneous. The court 

dismissed these petitions based on the general rule prohibiting hybrid 

representation. See Ellis, supra. See also Pa.R.A.P. 3304 (stating: 

“Where a litigant is represented by an attorney before the [c]ourt and the 

litigant submits for filing a petition, motion, brief or any other type of 

pleading in the matter, it shall not be docketed but forwarded to counsel of 

record”). Nevertheless, PCRA counsel had filed a motion to withdraw and 

Turner/Finley “no-merit” letter on December 30, 2013. Thus, the rule 

against hybrid representation was no longer applicable. See generally 

Commonwealth v. Ford, 44 A.3d 1190, 1198 n.4 (Pa.Super. 2012) 

(stating: “When counsel files a Turner/Finley no-merit letter and counsel 

has not yet been permitted to withdraw, the rule against hybrid 

representation is inapplicable, as the petitioner can file a pro se

response”).13 

____________________________________________

13 Notably, the court’s Rule 907 notice order and opinion specifically stated: 

“The defendant may respond to this NOTICE within twenty (20) days of the 

docketing of this Order. If the defendant has not responded, a subsequent 

Order will be entered permitting [c]ourt [a]ppointed [c]ounsel to withdraw, 

and dismissing the defendant’s PCRA petition. The subsequent Order shall 

be a final appealable Order disposing of the defendant’s PCRA petition. If 

the defendant responds to this NOTICE, the [c]ourt will: either dismiss 

defendant’s PCRA petition; direct, if warranted, that [c]ourt [a]ppointed 

[c]ounsel review defendant’s response; or, if warranted, direct that further 

proceedings be held.” (Rule 907 Notice Order and Opinion at 2). 
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Fourth, the record demonstrates Appellant has at least two meritorious 

issues regarding (1) the court’s calculation of Appellant’s RRRI minimum 

sentence;14 and (2) the restitution portion of Appellant’s sentence. See 

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (stating this 

Court can raise sua sponte issues concerning legality of sentence).

The relevant version of the RRRI statute at the time of Appellant’s 

sentencing provided, in pertinent part, as follows: 

§ 5305. Sentencing 

(a) Generally.―At the time of sentencing, the court 

shall make a determination whether the defendant is an 

eligible offender. 

* * *

(c) Recidivism risk reduction incentive minimum 

sentence.―If the court determines that the defendant is 

an eligible offender or the prosecuting attorney has waived 

the eligibility requirements under subsection (b), the court 

shall enter a sentencing order that does all of the 

following: 

(1) Imposes the minimum and maximum 

sentences as required by 42 Pa.C.S. § 9752 (relating 

to sentencing proceeding generally).

(2) Imposes the recidivism risk reduction 

incentive minimum sentence. The recidivism risk 

reduction incentive minimum sentence shall be equal 

to three-fourths of the minimum sentence imposed 

when the minimum sentence is three years or less. 

The recidivism risk reduction incentive minimum 

____________________________________________

14 The RRRI calculation issue we address differs from Appellant’s specific 

RRRI complaint on appeal but still implicates the legality of the sentence. 
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shall be equal to five-sixths of the minimum 

sentence if the minimum sentence is greater than 

three years. ... 

* * *

61 Pa.C.S.A. § 5305.15 

Here, the PCRA court granted limited PCRA relief on January 22, 2014 

to make Appellant RRRI-eligible. On February 18, 2014, the court calculated 

Appellant’s aggregate RRRI minimum sentence as two hundred and twentyseven (227) months. In calculating the RRRI breakdown for each of 

Appellant’s sentences, however, the court erroneously listed Appellant’s 

delivery of a controlled substance sentence at docket 4269-2007 as five (5) 

to ten (10) years’ imprisonment, which would call for a fifty (50) month 

RRRI minimum sentence. (See Order, dated February 18, 2014, at 1.) See 

also 61 Pa.C.S.A. § 5305(c)(2). Nevertheless, the record makes clear the 

court sentenced Appellant at docket 4269-2007 to three (3) to ten (10) 

years’ imprisonment for his delivery of a controlled substance conviction. 

(See N.T. Sentencing, 3/4/09, at 19; Sentencing Order for docket 4269-

2007, 3/4/09, at 1.) As a result, the applicable RRRI minimum sentence for 

this conviction is actually twenty (27) months’ imprisonment, not fifty (50) 

____________________________________________

15 The legislature repealed this version of the RRRI statute on October 9, 

2009 (effective October 13, 2009). On August 11, 2009 (effective October 

13, 2009), the legislature re-codified the RRRI statute at 61 Pa.C.S.A. §

4505. Section 4505 contains the same calculation language set forth in 

Section 5305 (repealed). See 61 Pa.C.S.A. § 4505(c). 
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months’ imprisonment. See 61 Pa.C.S.A. § 5305(c)(2). Therefore, 

Appellant’s total RRRI minimum sentence should equal two hundred and four 

(204) months’ imprisonment, not two hundred and twenty-seven (227) 

months. 

Regarding the restitution portion of Appellant’s sentence, Section 1106 

of the Crimes Code governs orders of restitution, in pertinent part, as 

follows:

§ 1106. Restitution for injuries to person or property

(a) General rule.—Upon conviction for any crime 

wherein property has been stolen, converted or otherwise 

unlawfully obtained, or its value substantially decreased as 

a direct result of the crime, or wherein the victim suffered 

personal injury directly resulting from the crime, the 

offender shall be sentenced to make restitution in addition 

to the punishment prescribed therefor. 

18 Pa.C.S.A § 1106(a). The statute refers to the Crime Victims Act for the 

definition of “victim” for purposes of Section 1106.16 See 18 Pa.C.S.A. § 

1106(h). The Crime Victims Act defines “victim” as:

(1) A direct victim. 

(2) A parent or legal guardian of a child who is a direct 

victim, except when the parent or legal guardian of the 

child is the alleged offender. 

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16 Section 1106(h) relies on the definition of “victim” set forth in Section 

479.1 of the Act of April 9, 1929 (P.L. 177, No. 175), known as the 

Administrative Code of 1929 (repealed; now codified at 18 Pa.C.S.A. § 

11.101 et seq., known as the “Crime Victims Act”). 
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(3) A minor child who is a material witness to any of the 

following crimes and offenses under 18 Pa.C.S. (relating to 

crimes and offenses) committed or attempted against a 

member of the child’s family: 

Chapter 25 (relating to criminal homicide). 

Section 2702 (relating to aggravated assault).

Section 3121 (relating to rape). 

(4) A family member of a homicide victim including 

stepbrothers or stepsisters, stepchildren, stepparents or a 

fiancé, one of whom is to be identified to receive 

communication as provided for in this act, except where 

the family member is the alleged offender. 

18 Pa.C.S.A. § 11.103. 

Importantly, “the Commonwealth...does not qualify as a victim as that 

term is defined in [Section] 1106.” Commonwealth v. Boyd, 835 A.2d 

812, 819 (Pa.Super. 2003). Thus, the Commonwealth cannot recover as 

restitution from a defendant “buy money” used in a controlled drug 

transaction. See id. (holding Commonwealth is not “victim” as defined in 

Section 1106, so Commonwealth cannot recover as restitution any buy 

money defendant obtained as result of controlled buy; vacating portion of 

sentence ordering defendant to pay “restitution” for buy money to 

Commonwealth). 

Nevertheless, “[i]n any case where a defendant is convicted and 

sentenced to pay the costs of prosecution and trial, the expenses of the 

district attorney in connection with such prosecution shall be considered a 

part of the costs of the case and be paid by the defendant.” 16 Pa.C.S.A. § 
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1403. This Court has stated:

In that the district attorney is the chief law enforcement 

officer of a county, ...when a drug buy is arranged by police 

officers, these officers are proceeding in accordance with 

general directives from the district attorney of that county. 

Consequently, we find that buy money expended by 

officers in furtherance of their investigation and 

apprehension of persons suspected of crime are reasonable 

costs of prosecution within the purview of § 1403, if such 

funds are not recovered by drug enforcement officers prior 

to the time of sentencing.

Commonwealth v. Smith, 901 A.2d 1030, 1032-33 (Pa.Super. 2006), 

appeal denied, 590 Pa. 667, 912 A.2d 837 (2006). Therefore, buy money 

used in a controlled drug transaction cannot be recovered under a restitution 

order, but it can be recovered as a reasonable cost of prosecution. Id. 

Here, the court imposed restitution at dockets 4269-2007 ($300.00), 

4270-2007 ($3,600.00), and 4272-2007 ($600.00), to recoup the buy 

money used in the August 1, 2007, August 16, 2007, and September 11, 

2007 controlled buys. The court’s imposition of restitution to recover the 

buy money was improper, however, because the Commonwealth does not 

qualify as a “victim” under Section 1106 and cannot recover buy money 

through a restitution order. See 18 Pa.C.S.A. § 11.103; Boyd, supra. 

Based on the missing documents in the certified record, the PCRA 

court’s failure to address most of Appellant’s issues and improper dismissal 

of Appellant’s January 9, 2014 and January 27, 2014 pro se filings (docketed 

after PCRA counsel had moved to withdraw), the inadequate supplemental 

Rule 1925(a) opinion, and the existence of at least two meritorious 
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sentencing issues, the best resolution of this case is to vacate and remand 

for further proceedings. See Kenney, supra. Upon remand, the PCRA 

court must (1) correct Appellant’s RRRI calculation; (2) re-characterize the 

restitution provisions of Appellant’s sentence concerning the “buy money” as 

reasonable costs of prosecution;17 (3) appoint new counsel to assist 

Appellant in filing an amended PCRA petition raising all non-frivolous issues 

Appellant wants to pursue; if appointed counsel concludes no non-frivolous 

issues exist, counsel may file a Turner/Finley “no-merit” letter identifying 

why Appellant’s claims are frivolous and otherwise complying with the 

dictates of Turner and Finley; and (4) complete the certified record so it 

contains all relevant documents necessary to dispose of Appellant’s claims, 

including Appellant’s September 17, 2013 PCRA petition and PCRA counsel’s 

December 30, 2013 Turner/Finley “no-merit” letter.18 Accordingly, we 

____________________________________________

17 If the Commonwealth recovered the $3,600.00 used in the September 11, 

2007 controlled buy upon execution of the search warrant at Appellant’s 

residence that day, it cannot recover those funds again as costs of 

prosecution. See Smith, supra. 

18 On March 6, 2015, Appellant filed a pro se petition for relief in this Court, 

alleging the court imposed mandatory minimum sentences under 18 

Pa.C.S.A. § 7508 (relating to imposition of mandatory minimum sentences 

based on weight of drugs), which Appellant contends is now 

unconstitutional. See Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 

2151, 186 L.Ed.2d 314 (2013) (holding any fact increasing mandatory 

minimum sentence for crime is considered element of crime to be submitted 

to fact-finder and found beyond reasonable doubt); Commonwealth v.

Newman, 99 A.3d 86, 98 (Pa.Super. 2014) (en banc) (analyzing 

constitutionality of 18 Pa.C.S.A. § 9712.1 (which contains language similar 

(Footnote Continued Next Page)
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vacate and remand for further proceedings.

Order vacated; case remanded with instructions. Jurisdiction is 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015

(Footnote Continued) _______________________

to Section 7508) and holding that Section 9712.1 can no longer pass 

constitutional muster under Alleyne as it permits trial court, as opposed to 

jury, to increase defendant’s minimum sentence based upon preponderance 

of evidence that defendant was dealing drugs and possessed firearm, or that 

firearm was in close proximity to drugs). Nevertheless, this Court made 

clear in Newman that Alleyne is subject to limited retroactivity; in other 

words, Alleyne is applicable only to criminal cases still pending on direct 

review. Id. at 90. Here, the court sentenced Appellant on March 4, 2009, 

and our Supreme Court denied allowance of appeal on September 4, 2012. 

Appellant’s judgment of sentence became final on December 3, 2012, upon 

expiration of the time to file a petition for writ of certiorari with the United 

States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. 

The Supreme Court decided Alleyne on June 17, 2013. Thus, Appellant’s 

judgment of sentence was already final before Alleyne was decided. 

Accordingly, Appellant is not entitled to retroactive application of Alleyne, 

and we deny Appellant’s pro se petition for relief.