IN THE SUPREME COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

COMMONWEALTH OF PENNSYLVANIA, 

 Respondent 

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JAVIER GONZALEZ, 

 Petitioner 

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No. 646 EAL 2015 

Petition for Allowance of Appeal from 

the Unpublished Memorandum and 

Order of the Superior Court at No. 2544 

EDA 2014 entered on October 15, 2015, 

affirming the Order of the Philadelphia 

County Court of Common Pleas at No. 

CP-51-CR-0004027-2007 entered on 

July 21, 2014 

ORDER 

PER CURIAM 

AND NOW, this 24th day of May, 2016, upon consideration of the 

Commonwealth’s Answer to the Petition for Allowance of Appeal, filed in response to 

this Court’s order of May 4, 2016 (see attached), and in view of the Commonwealth’s 

agreement that the matter be remanded to the PCRA court for appointment of new 

PCRA counsel, the petition for allowance of appeal is GRANTED, the order of the 

Superior Court is VACATED, and the matter is REMANDED to the PCRA court for 

appointment of new PCRA counsel. The PCRA court is further ordered to direct new 

counsel to determine whether a colorable claim of counsel abandonment on direct 

appeal may be forwarded pursuant to Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 

2007), and if so, to file an amended PCRA petition raising that claim. Jurisdiction is 

relinquished. 

 
[646 EAL 2015] - 2 

IN THE SUPREME COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

COMMONWEALTH OF PENNSYLVANIA, 

 Respondent 

 v. 

JAVIER GONZALEZ, 

 Petitioner 

:

:

:

:

:

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:

:

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:

:

No. 646 EAL 2015 

Petition for Allowance of Appeal from 

the Order of the Superior Court 

ORDER 

PER CURIAM 

AND NOW, this 4th day of May, 2016, the Court has for consideration the pro se

petition for allowance of appeal in this matter. The Commonwealth has elected not to 

file an answer, as is its right to do without prejudice under Pa.R.A.P. 1116(a). 

Upon review it appears that petitioner, who is serving a substantial sentence, 

defaulted his direct appeal due to counsel abandonment, and did not invoke his 

collateral review rights under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§9541-9546, in a timely fashion. After petitioner filed a facially untimely pro se motion, 

PCRA counsel was appointed and filed an amended petition, which is not included in 

the present record. 

In denying relief primarily on grounds of untimeliness, the PCRA court noted it 

had not granted counsel leave to amend the pro se pleading. Upon appeal, PCRA 

counsel was granted leave to withdraw, while identifying as a potential issue whether 

petitioner was entitled to PCRA review under the time-bar exception addressed in 
[646 EAL 2015] - 3 

Commonwealth v Bennett, 930 A.2d 1264 (Pa. 2007) (defendant claiming counsel

effectively abandoned him on appeal may be entitled to application of exception to oneyear PCRA time limitation). Petitioner was left to proceed pro se in the Superior Court. 

A divided Superior Court panel denied relief, with the majority postulating, among 

other points, that as a matter of law, and even if assisted by new counsel, review was 

unavailable. Superior Court Majority Slip Op. at 11. The dissent responded by 

suggesting the proper course was appointment of new counsel for purposes of 

determining whether a colorable Bennett claim could be forwarded. Superior Court 

Dissenting Slip Op. at 1-3. 

In his petition for allowance of appeal, petitioner now cites Bennett in support of 

his claim he should be entitled to a “limited extension” of the one-year PCRA time-bar in 

a situation that was beyond his control. Petition for Allowance of Appeal at 7. Under 

these unusual circumstances — including the counsel abandonment issues, the record 

deficiency, and the PCRA court's denial of amendment — it would be of benefit to the 

Court to have the views of the Commonwealth on whether a remand to the PCRA court 

for appointment of new counsel would be appropriate, to determine whether a colorable 

Bennett claim in fact can be forwarded (subject, of course, to any factual or legal 

defenses also available to the Commonwealth). 

Accordingly, the Commonwealth is hereby directed to file an answer to the 

instant petition for allowance of appeal within 30 days.