J-S07021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

DAVID REYES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1621 EDA 2019

Appeal from the PCRA Order Entered May 3, 2019

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001249-2013

BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.: Filed:May 21, 2020

Appellant, David Reyes, appeals pro se from the order entered in the 

Philadelphia County Court of Common Pleas, which denied his first petition 

filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-

9546. For the following reasons, we vacate and remand with instructions.

In its opinion, the PCRA court sets forth the relevant facts and 

procedural history of this case as follows:

On January 8, 2015, a jury...convicted [Appellant] on charges of 

first-degree murder, violations of the Uniform Firearms Act, and 

possessing an instrument of crime. Immediately after entry of 

the jury’s verdict, [Appellant] was sentenced to life 

imprisonment without the possibility of parole, as well as an 

aggregate concurrent imprisonment term of eight and one-half 

(81⁄2) to seventeen (17) years. [Appellant] filed a notice of 

appeal on February 2, 2015, and, on February 14, 2017, the 

Superior Court affirmed the judgment of sentence. On March 1, 

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* Retired Senior Judge assigned to the Superior Court.
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2017, [Appellant] filed a petition for allowance of appeal to the 

Supreme Court of Pennsylvania, which was denied on August 8, 

2017. 

On March 6, 2018, a [PCRA] petition was filed by then [privately 

retained] counsel, Jack McMahon, Jr., Esquire. On March [13],

2019, newly-appointed counsel, George S. Yacoubian, Jr., filed a 

“no-merit” letter pursuant to Pennsylvania v. Finley, 481 U.S. 

551 (1987) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988). 

(PCRA Court Opinion, filed October 29, 2019, at 1).

In the “no-merit” letter, appointed counsel stated he “reviewed 

[Appellant’s] petition (and accompanying affidavit), docket sheet, all 

relevant transcripts and attempted communication with [Appellant] via 

written correspondence.” (Turner/Finley letter, filed 3/13/19, at 1). 

Counsel further stated: “I have informed [Appellant] that, in my opinion, 

there is no viable PCRA claim, and that in the event his petition is dismissed 

pursuant to [Turner/]Finley he will no longer be eligible for courtappointed counsel but could represent himself or retain counsel.” (Id.) 

Although counsel copied Appellant on the Turner/Finley letter, the record 

lacks any certificate of service indicating counsel provided the letter to 

Appellant. Additionally, counsel did not file a separate petition to withdraw. 

On March 18, 2019, the PCRA court issued notice of its intent to 

dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 

907. The Rule 907 notice order demonstrates the court addressed the order 

to appointed counsel and copied Appellant on it. The order, however, lacks 

any certificate of service. On March 29, 2019, Appellant filed a pro se
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motion for an extension of time to respond to the court’s Rule 907 notice. In 

the motion, Appellant stated that he presumed appointed counsel no longer 

represented him due to counsel’s filing of a “no-merit” letter. Consequently, 

Appellant intended to proceed pro se and requested an extension of time to 

obtain and review the PCRA petition and trial transcripts. Appellant filed pro 

se motions for transcripts and to proceed in forma pauperis on April 23, 

2019. On April 26, 2019, Appellant filed a second pro se motion for an 

extension of time, after failing to receive any documents from appointed 

counsel. The PCRA court did not rule on any of Appellant’s pro se motions. 

Rather, on May 3, 2019, the court issued an order dismissing Appellant’s 

PCRA petition. Significantly, the May 3rd order did not specifically permit 

appointed counsel to withdraw.

Appellant’s former privately-retained counsel filed a notice of appeal

on Appellant’s behalf, docketed at 1503 EDA 2019, on May 16, 2019. On 

May 21, 2019, Appellant filed a motion in the PCRA court to discharge courtappointed counsel and for leave to proceed pro se. The PCRA court did not 

rule on this motion. On May 23, 2019, the court ordered Appellant to file a 

concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 

1925(b). Appellant filed a pro se notice of appeal, docketed at 1621 EDA 

2019, on May 29, 2019, and a pro se Rule 1925(b) statement on May 31, 

2019. On June 10, 2019, Appellant filed in this Court an application for 

relief, seeking to proceed pro se. This Court remanded the matter on July 2, 
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2019, for a Grazier1 hearing and on August 13, 2019, the PCRA court 

permitted Appellant to proceed pro se. On September 3, 2019, this Court 

discontinued as duplicative the appeal at 1503 EDA 2019, initiated by 

Appellant’s former privately-retained counsel. 

Appellant raises the following issues for our review: 

DID THE PCRA COURT ABUSE ITS DISCRETION IN SUA 

SPONTE REMOVING PRIVATELY RETAINED COUNSEL AND 

APPOINTING NEW PCRA COUNSEL? 

DID THE PCRA COURT ERR IN FAILING TO PROVIDE 

APPELLANT WITH NOTICE WHEN IT, SUA SPONTE, 

REMOVED PRIVATELY RETAINED COUNSEL AND 

APPOINTED NEW PCRA COUNSEL? 

DID THE PCRA COURT ERR AS A MATTER OF LAW IN NOT 

GRANTING COURT APPOINTED COUNSEL’S REQUEST TO 

WITHDRAW AT THE TIME IT ISSUED ITS [RULE] 907 

NOTICE OF INTENT TO DISMISS THE PETITION BASED ON 

COUNSEL’S “NO MERIT” LETTER? 

DID THE PCRA COURT ERR AS A MATTER OF LAW AND 

DENY APPELLANT THE FUNDAMENTAL CONCEPTS OF DUE 

PROCESS IN FAILING TO RULE ON ANY OF HIS PROPERLY 

FILED PRO SE MOTIONS? 

DID THE PCRA COURT ERR IN SUMMARILY DISMISSING 

THE PCRA PETITION BASED SOLELY ON PCRA COUNSEL’S 

DEFICIENT TURNER/FINLEY “NO MERIT” LETTER WHERE 

COUNSEL MISAPPREHENDED THE ONE ISSUE OF TRIAL 

COUNSEL’S INEFFECTIVENESS RAISED IN THE PETITION?

(Appellant’s Brief at 4-5).

Preliminarily, before counsel can be permitted to withdraw from 

representing a petitioner under the PCRA, Pennsylvania law requires counsel 

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1 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). 
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to file a “no-merit” brief or letter pursuant to Commonwealth v. Turner, 

518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 

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

836 A.2d 940 (Pa.Super. 2003). 

[C]ounsel must...submit a “no-merit” letter to the [PCRA] 

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 the 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.

If counsel fails to satisfy the foregoing technical 

prerequisites of Turner/Finley, the court will not reach 

the merits of the underlying claims but, rather, will merely 

deny counsel’s request to withdraw. Upon doing so, the 

court will then take appropriate steps, such as directing 

counsel to file a proper Turner/Finley request or an 

advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (internal 

citations omitted). 

Furthermore, 

[D]ue process requires the post-conviction process to be 

fundamentally fair, even though procedural due process 

protections for PCRA proceedings are less stringent than 

they are for a trial or direct appeal. Commonwealth v. 

Bennett, 593 Pa. 382, 930 A.2d 1264 (2007). “Thus, 

petitioners must be given the opportunity for the 

presentation of claims at a meaningful time and in a 

meaningful manner.” Id. at 398, 930 A.2d at 1273. 

Pennsylvania law makes clear: 
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While a PCRA petitioner does not have a Sixth 

Amendment right to assistance of counsel during 

collateral review, this Commonwealth, by way of 

procedural rule, provides for the appointment of 

counsel during a [petitioner’s] first petition for post 

conviction relief. Pursuant to our procedural rule, 

not only does a PCRA petitioner have the “right” to 

counsel, but also he has the “right” to effective 

assistance of counsel. The guidance and 

representation of an attorney during collateral review 

should assure that meritorious legal issues are 

recognized and addressed, and that meritless claims 

are foregone. 

Commonwealth v. Haag, 570 Pa. 289, 307-08, 809 A.2d 

271, 282-83 (2002), cert. denied, 539 U.S. 918, 123 S.Ct. 

2277, 156 L.Ed.2d 136 (2003) (internal citations and most 

quotations marks omitted). The rule-based right to 

counsel and to effective assistance of counsel extends 

throughout the post-conviction proceedings, including any 

appeal from the disposition of the PCRA petition. 

Commonwealth v. Quail, 729 A.2d 571, 573 (Pa.Super. 

1999); Pa.R.Crim.P. 904(E). “[O]nce counsel has entered 

an appearance on a [petitioner’s] behalf he is obligated to 

continue representation until the case is concluded or he is 

granted leave by the court to withdraw his appearance.” 

Id. 

Rule 907 controls the disposition of a PCRA petition 

without a hearing.... The purpose of a Rule 907 predismissal notice is “to allow a petitioner an opportunity to 

seek leave to amend his petition and correct any material 

defects, the ultimate goal being to permit merits review by 

the PCRA court of potentially arguable claims.” 

Commonwealth v. Rykard, 55 A.3d 1177, 1189 

(Pa.Super. 2012), appeal denied, 619 Pa. 714, 64 A.3d 

631 (2013). The response to the Rule 907 notice “is an 

opportunity for a petitioner and/or his counsel to object to

the dismissal and alert the PCRA court of a perceived 

error, permitting the court to discern the potential for 

amendment.” Id. The response is also the opportunity for 

the petitioner to object to counsel’s effectiveness at the 

PCRA level. Id. When a PCRA court properly issues Rule 
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907 notice in compliance with the rules of criminal 

procedure, an appellant is deemed to have sufficient notice 

of dismissal. Commonwealth v. Ousley, 21 A.3d 1238, 

1246 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30 

A.3d 487 (2011). 

“Absent recognition of a constitutional right to effective 

collateral review counsel, claims of PCRA counsel 

ineffectiveness cannot be raised for the first time after a 

notice of appeal has been taken from the underlying PCRA 

matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201 

(Pa.Super. 2012). A petitioner’s failure to raise an 

ineffectiveness of counsel claim after receiving Rule 907 

notice results in waiver of the claim. Commonwealth v. 

Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009). 

See also Commonwealth v. Rigg, 84 A.3d 1080, 1084 

(Pa.Super. 2014) (waiving Appellant’s claim of 

ineffectiveness of derivative PCRA counsel for failure to 

assert it in response to Rule 907 notice); Ousley, supra

at 1245 (stating Pitts prohibits this Court’s review of 

petitioner’s ineffectiveness of PCRA counsel claim, where 

issue was raised for first time in PCRA appeal). 

Commonwealth v. Smith, 121 A.3d 1049, 1053-54 (Pa.Super. 2015), 

appeal denied, 635 Pa. 763, 136 A.3d 981 (2016).

Instantly, the record demonstrates that court-appointed counsel filed a 

Turner/Finley “no-merit” letter without the required separate petition to 

withdraw as counsel. See Wrecks, supra. Additionally, counsel failed to 

properly advise Appellant of his right to respond. In the “no-merit” letter, 

counsel stated: “I have informed [Appellant] that, in my opinion, there is no 

viable PCRA claim, and that in the event his petition is dismissed

pursuant to [Turner/]Finley he will no longer be eligible for courtappointed counsel but could represent himself or retain counsel.” (See 

Turner/Finley letter, filed 3/13/19, at 1) (emphasis added). The “no-
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merit” letter incorrectly informed Appellant that his rights were conditioned 

on the court dismissing his PCRA petition. As a result, court-appointed 

counsel did not provide Appellant an adequate opportunity to respond to 

counsel’s “no-merit” letter. See Commonwealth v. Bush, 197 A.3d 285, 

287-88 (Pa.Super. 2018) (vacating and remanding due to non-compliance 

with Turner/Finley requirements where counsel’s no-merit letter informed 

appellant that his right to proceed pro se or by new counsel took effect only 

if withdrawal was permitted by the PCRA court). Thus, counsel failed to 

comply with the technical requirements of Turner/Finley. See Wrecks, 

supra. 

Further, after the filing of the “no-merit” letter, the PCRA court issued

Rule 907 notice, addressed to appointed counsel. Though the notice 

mentioned counsel’s “no-merit” letter, it was silent as to whether counsel 

still represented Appellant or whether Appellant had the right to respond pro 

se or through privately-retained counsel. In response to the Rule 907

notice, Appellant filed pro se several motions seeking an extension of time to 

file a pro se response. The PCRA court, however, did not rule on any of 

these motions; the court simply dismissed Appellant’s PCRA petition. In its 

order dismissing Appellant’s petition, the court also failed to state expressly 

that counsel was permitted to withdraw. 

Under these circumstances, the PCRA court’s and court-appointed 

counsel’s collective errors deprived Appellant of a meaningful opportunity to 
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respond to counsel’s “no-merit” letter and the court’s Rule 907 notice. See 

Bennett, supra; Rykard, supra. Therefore, we vacate the PCRA court’s 

order dismissing Appellant’s petition, and remand for court-appointed 

counsel to file a proper motion to withdraw and amended Turner/Finley

letter that properly advises Appellant of his rights. If the PCRA court 

subsequently issues Rule 907 notice, it must afford Appellant an opportunity 

to respond within the requisite timeframe, and rule on any pro se motions 

Appellant might file. The court must also expressly rule on counsel’s motion 

to withdraw. Accordingly, we vacate and remand for further proceedings.

Order vacated; case remanded with instructions. Jurisdiction is 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/21/20