J-S84023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWIN MARQUEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 790 EDA 2018

Appeal from the PCRA Order February 6, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-CR-0904661-2005

BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED APRIL 29, 2019

Edwin Marquez, appeals, pro se, from the Order of February 6, 2018, 

that denied his first petition brought under the Post Conviction Relief Act 

(PCRA).

1

 On appeal, Marquez claims he received ineffective assistance of trial 

and appellate counsel. For the reasons discussed below, we do not reach the 

merits of Marquez’s arguments. Instead, we vacate the denial of PCRA relief 

and remand for the appointment of new counsel.

In late 2006, a jury found Appellant guilty of murder in the third degree 

and conspiracy. On January 18, 2007, the trial court sentenced Marquez to 

171⁄2 to 35 years’ imprisonment. On August 31, 2009, an en banc panel of 

this Court affirmed the judgment of sentence. Commonwealth v. Marquez, 

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1 42 Pa.C.S.A. §§ 9541-9546.
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980 A.2d 145 (Pa. Super. 2009) (en banc). The Pennsylvania Supreme Court 

denied leave to appeal on December 29, 2009. Commonwealth v. Marquez, 

987 A.2d 160 (Pa. 2009).

On August 17, 2011, Marquez, acting pro se, filed the instant PCRA 

petition. In the petition, Marquez acknowledged that it was untimely but 

quoted from a letter from appellate counsel in which counsel acknowledged 

that he had neglected to inform Marquez of the Pennsylvania Supreme Court’s 

denial of his petition for leave to appeal. Petition for Post Conviction Collateral 

Relief, 8/17/2011, at 3-5. On March 14, 2012, the PCRA court having taken

no action on his petition, Marquez filed a pro se memorandum of law. On May 

20, 2014, Marquez moved for appointment of counsel. Although not

specifically noted on the docket, it appears that the court appointed David S. 

Rudenstein, Esq., soon thereafter. 

On July 8, 2015, the PCRA court docketed a pro se PCRA petition at this 

case number, filed by Marquez’s co-defendant and brother, Carlos Jimenez.

2

 

On October 23, 2017, counsel filed a motion to withdraw and a Turner/Finley 

letter. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

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

review of counsel’s filing demonstrates that, although the court appointed 

counsel to represent Marquez, the petition counsel reviewed and discussed in 

____________________________________________

2 Jiminez also filed his pro se PCRA petition at the correct case number, CP51-CR-0904662-2005. That petition was dismissed and no appeal was filed.
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his Turner/Finley letter, was not Marquez’s, but the petition filed by his 

brother, Jimenez, which raised a completely different issue, that he was not 

exposed to the death penalty. Turner/Finley Letter, 10/23/2017, at 1-7. 

On January 2, 2018, the PCRA court issued notice of its intent to dismiss 

Marquez’s petition pursuant to Pennsylvania Rule of Criminal Procedure 

907(1) because of counsel’s filing of the Turner/Finley letter. Notice 

Pursuant to Pennsylvania Rule of Criminal Procedure 907, 1/02/2018, at 1. 

Marquez did not file a response. On February 6, 2018, the court dismissed 

the PCRA petition and granted counsel’s petition to withdraw. The instant 

appeal followed. The PCRA court did not order Marquez to file a concise 

statement of errors complained of on appeal. On March 28, 2018, the PCRA 

court issued an opinion. In its opinion, the court found that Marquez timely 

filed his PCRA petition and it analyzed the issues Marquez raised in the PCRA 

petition on the merits. Opinion, 3/28/2018, at 2-14.

Our standard of review for an order denying PCRA relief is well settled:

This Court’s standard of review regarding a PCRA court’s order is 

whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. Great deference is 

granted to the findings of the PCRA court, and these findings will 

not be disturbed unless they have no support in the certified 

record. Moreover, a PCRA court may decline to hold a hearing on 

the petition if the PCRA court determines that a petitioner’s claim 

is patently frivolous and is without a trace of support in either the 

record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted).
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Prior to any discussion of the merits of this appeal, we must first 

ascertain the propriety of the PCRA court’s granting of counsel’s motion to 

withdraw. Pursuant to Turner/Finley and their progeny:

Counsel petitioning to withdraw from PCRA representation 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.

* * *

[W]here 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) (citation 

omitted).

Unfortunately, counsel reviewed the incorrect petition and he premised 

his Turner/Finley letter on his analysis of Jimenez’s petition, presumably 

because Jimenez’s caption contained the same docket number as Marquez’s 

case. The PCRA court then compounded the error by issuing a Rule 907 notice 

and ultimately granting counsel’s petition to withdraw when, it is clear upon 

our review, he did not comply with the dictates of Turner/Finley as to 

Marquez’s petition. The Rules of Criminal Procedure expressly mandate that 
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a defendant shall be entitled to legal counsel when filing a first time PCRA 

petition. It is the province of appointed counsel to evaluate and develop a 

defendant’s claims. See Commonwealth v. Williams, 782 A.2d 517, 525 

(Pa. 2001). While the PCRA court did undertake a thorough analysis of both 

the timeliness of the PCRA petition and the merits of the issues raised in 

Marquez’s pro se petition, it should not have permitted counsel to withdraw 

when counsel so patently failed to evaluate and develop Marquez’s claims. 

Thus, we are constrained to vacate the denial of Marquez’s PCRA petition 

and remand the matter back to the PCRA court, so that Marquez may have an 

analysis undertaken of the issues he wishes to raise in his PCRA petition. Upon 

remand, we direct the PCRA court to appoint new counsel, who may file either 

an amended PCRA petition or a new Turner/Finley letter. Given the length 

of time that Marquez’s petition has languished in the courts, we hope that the 

PCRA court will do so as expeditiously as possible. 

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/29/19