J. S02012/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

GUIDO RYAN LaVELLA, : No. 1505 EDA 2016

:

 Appellant :

Appeal from the PCRA Order, April 29, 2016,

in the Court of Common Pleas of Chester County

Criminal Division at No. CP-15-CR-0003645-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2017

Guido Ryan LaVella appeals, pro se, from the order entered in the 

Court of Common Pleas of Chester County that dismissed, without a hearing, 

his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-9546. After careful review, we vacate the order and 

remand with instructions.

The PCRA court set forth the following procedural history in its 

April 12, 2016 notice of intent to dismiss PCRA petition pursuant to 

Pa.R.Crim.P. 907(1):

[Appellant] entered into an open guilty plea on 

August 14, 2014 to five (5) counts of Theft by 

Deception, 18 Pa.C.S.[A.] § 3922(a)(1). A 

Pre-Sentence Investigation Report was completed, 

and a sentencing hearing was conducted on 

October 24, 2014. [Appellant] was sentenced by the 

court to an aggregate term of not less than six (6) 
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years four (4) months, not more than fifteen (15) 

years in prison. [Appellant] filed a motion for 

reconsideration on November 3, 2014, and oral 

argument on that motion was held on January 9, 

2015. [Appellant’s] motion was granted in part and 

denied in part, and [appellant’s] sentence was 

amended on February 5, 2015 to include the proper 

[Recidivism Risk Reduction Incentive] minimum 

sentence calculation. [Appellant] filed an appeal to 

the Superior Court on March 4, 2015 which was 

subsequently withdrawn on May 5, 2015. 

[Appellant] then filed the instant pro se PCRA 

petition on September 2, 2015, and a related “First 

Supplemental Petition” on November 16, 2015. The 

court issued a Notice of Intent to Dismiss the PCRA 

petition on November 30, 2015. Pursuant to the 

provisions of Pa.R.A.P. 907(1), [appellant] was 

informed that he had twenty (20) days from the 

docketing of that Notice (which occurred on 

December 1, 2015) to respond, or else his petition 

would be dismissed. [Appellant’s] Response to the 

court’s notice was filed on December 14, 2015. 

Upon review of [appellant’s] response, on January 7, 

2016 the court vacated its Notice of Intent to 

Dismiss and appointed Robert P. Brendza, Esquire to 

represent [appellant] in these PCRA proceedings. 

Counsel filed a Petition to Withdraw as PCRA Counsel 

per Commonwealth v. Finley, 550 A.2d 213 

(Pa.Super. 1988) [(en banc)] and Commonwealth 

v. Turner, 544 A.2d 927 (Pa. 1988) on March 29, 

2016.

PCRA court’s notice of intent to dismiss PCRA petition pursuant to 

Pa.R.Crim.P. 907(1), 4/12/16 at 2 n.1.

The record reveals that the PCRA court’s April 12, 2016 notice of intent 

to dismiss PCRA petition pursuant to Rule 907(1) properly informed 

appellant of his right to respond to the proposed dismissal within 20 days of

the date of the notice. The record further reflects that appellant certified in 
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a proof of service that he served on the PCRA court, among others, by 

U.S. First Class Mail, his response to show cause to notice of intent to 

dismiss PCRA petition pursuant to Rule 907(1) on April 27, 2016. 

Appellant’s response and proof of service are time-stamped as being 

received by the Clerk of Courts of Chester County on May 2, 2016. Although 

no timeliness issue exists with respect to the filing of appellant’s response, 

the record raises a concern that the PCRA court may have dismissed 

appellant’s PCRA petition prematurely because (1) appellant’s response is 

time-stamped as being received on May 2, 2016, and the PCRA court 

entered its order dismissing the petition on April 29, 2016; and (2) the PCRA 

court attempted to respond to appellant’s response to its notice of intention 

to dismiss nearly one month after it entered its order that, in fact, dismissed 

appellant’s PCRA petition.

The next relevant docket entry reveals that on May 13, 2016, 

appellant filed a notice of appeal to this court of the PCRA court’s April 29, 

2016 order dismissing his PCRA petition. On May 23, 2016, which was 

nearly one month after the PCRA court entered its order dismissing 

appellant’s PCRA petition, the PCRA court filed an “Amended Order” in which 

it attempted to vacate its April 29, 2016 order dismissing appellant’s PCRA 

petition. In the May 23, 2016 filing, the PCRA court attempts to “address 
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herein the issues raised by [appellant] in his second Response of April 28, 

2016.”1 (Docket #38.)

Although a trial court may generally modify or rescind any order within 

30 days of its entry, it is prohibited from doing so once an appeal has been 

taken. See 42 Pa.C.S.A. § 5505 (providing that “a court upon notice to the 

parties may modify or rescind any order within 30 days after its entry, 

notwithstanding the prior termination of any term of court, if no appeal from 

such order has been taken”). Here, appellant filed his notice of appeal on 

May 13, 2016, appealing from the April 29, 2016 order that is, of course, the 

subject of this appeal. Once appellant filed that notice of appeal, the PCRA 

court lacked jurisdiction to vacate its April 29, 2016 order and enter another 

order dismissing the petition and responding to appellant’s response to the 

PCRA court’s April 12, 2016 notice of intention to dismiss.

In light of the puzzling procedural history of this case and the concern 

it raises regarding the premature dismissal of appellant’s PCRA petition, we

are constrained to vacate the PCRA court’s April 29, 2016 order dismissing 

appellant’s PCRA petition and remand to the PCRA court with instructions to 

provide the parties with the requisite notice of intention to dismiss pursuant 

 

1 We are unable to determine why the PCRA court referred to appellant’s 

response as the “[r]esponse of April 28, 2016” because appellant dated the 

response April 27, 2016 and it is time-stamped as being received by the 

Clerk of Courts of Chester County on May 2, 2016.
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to Rule 907; afford appellant 20 days to respond to the proposed dismissal; 

and thereafter enter an order on the petition.

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2017