J-S05004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SEAN D. GREENE,

Appellant No. 1505 WDA 2013

Appeal from the PCRA Order August 28, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0015507-2006

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.: FILED MARCH 18, 2015

After careful review, I respectfully disagree with the Majority’s 

conclusion that, despite the PCRA court’s failure to comply with the notice 

requirements of Pa.R.Crim.P. 907, Appellant received the protection afforded 

by Rule 907. Thus, I would vacate the PCRA court’s order and remand.

The notice requirement contained in Rule 907 is mandatory. 

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000). Rule 

907 reads, in relevant part, as follows:

(1) the judge shall promptly review the petition, any answer by 

the attorney for the Commonwealth, and other matters of record 

relating to the defendant’s claim(s). If the judge is satisfied 

from this review that there are no genuine issues concerning any 

material fact and that the defendant is not entitled to postconviction collateral relief, and no purpose would be served by 

any further proceedings, the judge shall give notice to the 

parties of the intention to dismiss the petition and shall state in 

the notice the reasons for the dismissal. The defendant may 
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respond to the proposed dismissal within 20 days of the date of 

the notice. The judge thereafter shall order the petition 

dismissed, grant leave to file an amended petition, or direct that 

the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis supplied). Clearly, Rule 907(1) refers to a 

petitioner having twenty days in which to file a response to the PCRA court’s 

notice of intent to dismiss—not to counsel’s Turner/Finley documents.

Here, the PCRA court’s notice of intent to dismiss appeared on the 

docket on August 14, 2013. On the same day, the trial court received 

Appellant’s response to counsel’s Turner/Finley documentation. Despite 

the twenty-day requirement of Rule 907, the PCRA court’s order denying 

Appellant’s PCRA petition appeared on the docket on August 28, 2013, only 

fourteen days after the date of the Rule 907 notice. Appellant did not file a 

response to the PCRA court’s Rule 907 notice in that two-week period.

Using hindsight, the Majority concludes that Appellant “was afforded 

the protection provided by the notice requirement of Rule 907”

because “in responding to Counsel’s motion, [Appellant] responded to the 

grounds upon which the PCRA court proposed to dismiss his PCRA petition.” 

Majority at n.3. In support of its conclusion, the Majority relies on 

Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), and 

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003). However, its 

reliance on those cases is misplaced. Before the PCRA court dismissed the 

petitions in Albrecht and Barbosa, each of the petitioners was afforded 
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both further proceedings and an opportunity to present argument in support 

of his petition. Albrecht, 720 A.2d at 710; Barbosa, 819 A.2d at 86 n.4.

Appellant here did not receive the full twenty days in which to respond 

to the PCRA court’s notice, further proceedings, or an opportunity to present 

argument. Therefore, I would vacate the PCRA court’s order and remand, 

allowing Appellant at least the additional six days in which to file a response 

to the PCRA court’s proposed grounds for dismissal, as well as any claims 

related to PCRA counsel’s representation. See Commonwealth v. Pitts, 

981 A.2d 875, 880 n.4 (Pa. 2009) (instructing that petitioner may challenge 

PCRA counsel’s stewardship after receiving counsel’s withdrawal letter and 

notice of PCRA court’s intent to dismiss ); Commonwealth v. Henkel, 90 

A.3d 16 (Pa. Super. 2014) (summarizing case law on raising claims of PCRA 

counsel’s ineffectiveness).