J-S41033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICK LAVAR CANNON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 855 MDA 2022

Appeal from the PCRA Order Entered May 9, 2022

In the Court of Common Pleas of Lebanon County Criminal Division at 

No(s): CP-38-CR-0000559-2014

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: DECEMBER 20, 2022

Appellant, Rick Lavar Cannon, appeals from the order entered in the 

Court of Common Pleas of Lebanon County dismissing his second petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. In addition, appointed PCRA counsel has filed with this Court a petition 

to withdraw his representation, as well as an accompanying brief 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). 

Because the PCRA court failed to issue notice of its intent to dismiss pursuant 

to Pa.R.Crim.P. 907(1), and Appellant has objected, we vacate and remand. 

Further, we deny counsel’s petition to withdraw.

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* Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history are as follows: On March 14, 

2014, Appellant and his two co-conspirators robbed and shot two victims, one 

of whom later died as a result of his wounds. Following a high-speed chase 

from the police, Appellant was apprehended while in possession of cocaine 

and firearms. The Commonwealth charged Appellant with numerous crimes, 

including homicide. 

On July 2, 2015, Appellant, who was represented by counsel, entered a 

negotiated guilty plea as follows: “The plea deal is for 50 to 100 years in 

prison, and he must cooperate as necessary with the District Attorney’s Office 

regarding the two codefendants....” N.T., 7/2/15, at 3. Furthermore, Appellant

agreed that the plea was irrevocable. Id. at 12. 

On August 26, 2015, Appellant appeared for his sentencing hearing, and 

he made an oral motion to withdraw his plea. The trial court denied the motion 

and sentenced Appellant pursuant to the terms of the plea agreement. N.T., 

8/26/15, at 5. Specifically, the trial court sentenced Appellant to 50 to 100 

years in prison, as well as imposed fines. Appellant filed a timely direct appeal

wherein he presented the sole issue of whether he should have been permitted 

to withdraw his plea prior to sentencing. 

On June 5, 2017, finding no merit to Appellant’s claim, this Court 

affirmed his judgment of sentence. See Commonwealth v. Cannon, No. 

1680 MDA 2015, 2017 WL 2423120 (Pa.Super. filed 6/5/17) (unpublished 
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memorandum). Appellant filed a timely petition for allowance of appeal, which 

our Supreme Court denied on May 30, 2018. Appellant did not file a petition 

for a writ of certiorari with the United States Supreme Court. 

On July 27, 2018, Appellant filed a timely pro se PCRA petition, and 

counsel was appointed to represent him. On October 7, 2020, and November 

12, 2020, counsel filed amended petitions on behalf of Appellant. The PCRA 

court denied Appellant’s first PCRA petition, and he filed a timely, counseled 

appeal to this Court.1 On August 13, 2021, this Court affirmed the PCRA 

court’s order denying Appellant’s first PCRA petition. See Commonwealth 

v. Cannon, 97 MDA 2021, 2021 WL 3579173 (Pa.Super. filed 8/13/21) 

(unpublished memorandum). 

On or about March 3, 2022, Appellant filed a pro se PCRA petition, and 

counsel was appointed to represent him. On April 19, 2022, the 

Commonwealth filed a response to Appellant’s PCRA petition. Without either 

a hearing or Rule 907 notice, on May 9, 2022, the PCRA court entered an order 

dismissing Appellant’s second PCRA petition. Specifically, the PCRA court 

reasoned that Appellant’s PCRA petition was untimely filed and not subject to 

any of the timeliness exceptions. 

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1 On appeal, Appellant claimed his trial counsel was ineffective in advising him 

to enter a nonrevocable guilty plea and failing to present Appellant’s polygraph 

results to the prosecutor and lower court. Further, Appellant argued the lower 

court erred in allowing him to enter his guilty plea and in imposing fines 

without considering his financial resources. 
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On June 3, 2022, Appellant filed a counseled notice of appeal to this 

Court. The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) 

statement, and Appellant timely complied. Therein, Appellant averred, inter 

alia, that the PCRA court erred in dismissing his PCRA petition without 

providing him with notice of the court’s intent to dismiss as required by Rule 

907. On August 30, 2022, PCRA counsel filed in this Court a petition for leave 

to withdraw as counsel, as well as a supporting brief.

Prior to addressing the merits of Appellant’s claims on appeal, we must 

first decide whether counsel has fulfilled the procedural requirements for 

withdrawing his representation. Commonwealth v. Daniels, 947 A.2d 795, 

797 (Pa.Super. 2008). This Court has listed the conditions counsel must meet 

in seeking to withdraw in a collateral appeal as follows:

Counsel petitioning to withdraw from PCRA representation must 

proceed...under [Turner, supra and Finley, supra and]...must 

review the case zealously. Turner/Finley counsel must then 

submit a no-merit letter to the trial 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 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.

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[W]here counsel submits a petition and no-merit letter 

that...satisfy the technical demands of Turner/Finley, the 

court—trial court or this Court—must then conduct its own review 

of the merits of the case. If the court agrees with counsel that 

the claims are without merit, the court will permit counsel to 

withdraw and deny relief.
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Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (citation 

omitted).

Herein, PCRA counsel indicates he communicated with Appellant 

concerning the instant appeal, independently and conscientiously reviewed 

the record, conducted legal research, and ultimately concluded that the appeal 

is wholly frivolous. Counsel also lists in the brief the issues Appellant wishes 

to raise and explains why, in his view, Appellant is not entitled to relief. 

In addition, PCRA counsel has attached to his petition to withdraw a 

copy of the letter he sent to Appellant wherein counsel advised Appellant of 

his right to proceed pro se or through private counsel. Counsel also affixed a 

copy of his petition to withdraw and brief to the letter.2 Thus, we conclude 

that PCRA counsel has substantially complied with the procedural 

requirements of Turner and Finley. Therefore, we must proceed with an 

independent review of this case. Doty, supra.

On appeal, in the Turner/Finley brief, counsel sets forth the following 

issues: (1) Whether the PCRA court erred in dismissing Appellant’s petition on 

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2

In the Turner/Finley brief, counsel indicated that Appellant could proceed 

pro se or with private counsel “[s]hould the Superior Court grant [counsel’s] 

Application to Withdraw[.]” Turner/Finley Brief, filed 8/30/22, at 5. By order 

entered on September 30, 2022, this Court directed counsel to provide 

Appellant with a letter advising him of his immediate right to proceed pro se 

or with private counsel. Counsel complied and provided this Court with a copy 

of the revised letter on October 12, 2022. 

We note Appellant has filed neither a pro se brief nor a brief with 

privately retained counsel.
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the basis it was untimely filed; (2) Whether the PCRA court properly dismissed

Appellant’s petition without holding a hearing or providing notice under 

Pa.R.Crim.P. 907; (3) Whether the PCRA court properly dismissed Appellant’s 

petition on the basis it lacked merit.

Initially, we note “[o]ur standard of review for issues arising from the 

denial of PCRA relief is well-settled. We must determine whether the PCRA 

court’s ruling is supported by the record and free of legal 

error.” Commonwealth v. Hand, 252 A.3d 1159, 1165 (Pa.Super.

2021) (citation omitted).

Here, we find Appellant’s second issue to be dispositive. Appellant 

alleges the PCRA court erred in dismissing his PCRA petition without first 

serving him with Rule 907 notice. In its Pa.R.A.P. 1925(a) opinion, the PCRA 

court agrees that it did not provide notice of its intent to dismiss under Rule 

907(1). PCRA Court Opinion, filed 6/30/22, at 3. However, the PCRA court 

suggests that it was within its discretion to not provide such notice since it 

deemed Appellant’s PCRA petition to be untimely. See id. 

In the Turner/Finley brief, PCRA counsel agrees with the PCRA court’s 

analysis. Specifically, PCRA counsel indicates that “[w]hile the trial court did 

not provide notice of intent to dismiss [Appellant’s] petition under Rule 907, 

it was within [the trial court’s] discretion to not provide such notice. 

Accordingly, this claim is without merit.” Turner/Finley Brief, filed 8/30/22, 

at 3. Upon our independent review, we disagree.
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Pa.R.Crim.P. 907(1) provides the following:

(1) [T]he 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 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) (bold added).

This Court has held that the notice requirement of Rule 907(1) is 

mandatory. See Commonwealth v. Vo, 235 A.3d 365, 372 (Pa.Super. 

2020). Thus, the PCRA court’s non-compliance with Rule 907(1) requires 

vacatur of the order of dismissal, unless the petitioner waives the claim by 

failing to raise it on appeal. See id.; Commonwealth v. Taylor, 65 A.3d 

462, 468 (Pa.Super. 2013). Here, as indicated supra, Appellant raised the 

issue of the PCRA court’s non-compliance with Rule 907(1) in his Pa.R.A.P. 

1925(b) statement, and counsel raised the issue in the Turner/Finley brief. 

As this Court has explained:

[T]he purpose of Rule 907 pre-dismissal 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. 

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. The response is also the 
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opportunity for the petitioner to object to counsel’s effectiveness 

at the PCRA level. When a PCRA court properly issues Rule 907 

notice in compliance with the rules of criminal procedure, an 

appellant is deemed to have sufficient notice of dismissal.

Vo, 235 A.3d at 372 (citations, quotations, emphasis, and brackets omitted).

Here, there is no dispute the PCRA court failed to comply with Rule 

907(1)’s notice requirement, and Appellant has objected. Accordingly, we 

vacate the order dismissing Appellant’s second PCRA petition. See Vo, supra. 

We remand for the PCRA court, if it intends to dismiss Appellant’s petition 

without a hearing, to properly issue Rule 907(1) notice. See id. If the PCRA 

court issues notice, Appellant, upon receipt, “may respond to the proposed 

dismissal within 20 days of the date of the notice,” as provided in Rule 907(1). 

Id. at 372-73.

Petition to withdraw denied. Order vacated. Case remanded with 

instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/20/2022