J-S15022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RUSSELL A. WALLERY,

Appellant No. 3243 EDA 2014

Appeal from the PCRA Order Entered October 22, 2014

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0001596-2009

BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

CONCURRING MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 02, 2016

I am compelled to concur with the Majority that, under the law as it 

currently stands, we cannot review Appellant’s claims of PCRA counsel’s 

ineffectiveness, as they are being raised for the first time on appeal. I write 

separately, however, to express my continued disagreement with the legal 

authority that prevents such review and makes it impossible, in cases such 

as this, for a petitioner to obtain state-level relief for the ineffective 

assistance of the attorney representing him in the litigation of his first PCRA 

petition.1 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

For more on this point, see my dissenting opinion in Commonwealth v. 

Henkel, 90 A.3d 16, 32-37 (Pa. Super. 2014) (en banc) (J. Bender, 

dissenting).
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Here, Appellant was represented by the ostensibly ineffective attorney 

during the entire litigation of his petition before the PCRA court; thus, he 

could not have filed a pro se, amended petition asserting his ineffectiveness 

claims below.2 See Commonwealth v. Cooper, 27 A.3d 994, 1000 n. 9 

(Pa. 2011) (stating that a “criminal defendant has no right to hybrid 

representation in either [the] trial or appellate courts”). Additionally, 

current counsel, Tyree Blair, Esq., was not appointed to represent Appellant 

until this appeal was underway; therefore, the PCRA court would have been 

without jurisdiction to rule on any ineffectiveness claims, even had Attorney

Blair attempted to raise them below. Finally, more than one year has 

passed since Appellant’s judgment of sentence became final; consequently, 

he cannot file a timely, second petition asserting the claims he raises herein, 

nor would raising such claims meet any exception to the PCRA’s one-year 

time-bar. See 42 Pa.C.S. § 9545; Commonwealth v. Morris, 822 A.2d 

684, 694–95 (Pa. 2003) (stating that claims of PCRA counsel's 

ineffectiveness do not save an otherwise untimely PCRA petition). 

In sum, Appellant was - and continues to be - completely deprived of 

any ability to enforce his rule-based right to effective assistance of PCRA 

counsel at the state level. In cases such as this, I firmly believe that this 

Court should be permitted to assess PCRA counsel ineffectiveness claims 

____________________________________________

2

In any event, I would also decline to expect a pro se litigant to recognize, 

and correctly assert, claims of PCRA counsel’s ineffectiveness.
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that are raised for the first time on appeal, or at least have the power to 

remand to the PCRA court for its examination in the first instance. 

Unfortunately, decisions by our Supreme Court, and a majority of this Court 

in Henkel, have precluded us from doing so.