J-S37013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHANNON DUKES 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1917 EDA 2019

Appeal from the PCRA Order Entered May 15, 2019

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0013075-2014

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

MEMORANDUM BY PANELLA, P.J.: FILED JUNE 15, 2022

Shannon Dukes appeals from the order entered in the Philadelphia 

County Court of Common Pleas on May 15, 2019, dismissing his petition filed 

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

9546, without a hearing. After remand, and pursuant to our directive, PCRA 

counsel has filed a petition to withdraw as counsel, along with an Anders1

brief in which he concludes there are no non-frivolous issues to raise on 

appeal.2 For the reasons discussed below, we find the PCRA court properly 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967).

2 We note that PCRA counsel mistakenly labeled his brief an Anders brief. 

Anders applies only when counsel seeks to withdraw from representation on 

(Footnote Continued Next Page)
J-S37013-21

- 2 -

denied Dukes relief and affirm. We further grant counsel permission to 

withdraw. 

On November 16, 2015, following a jury trial, Dukes was found guilty of 

robbery, possession of an instrument of crime, and three violations of the 

Uniform Firearms Act, stemming from an attempted robbery in North 

Philadelphia. 

On May 9, 2016, the trial court sentenced Dukes to an aggregate term 

of seventeen to thirty-four years’ incarceration. We affirmed Dukes’ judgment 

of sentence on direct appeal. See Commonwealth v. Shannon Dukes, 1785 

EDA 2016 (Pa. Super., filed March 27, 2018) (unpublished memorandum). 

Dukes did not seek further review with the Pennsylvania Supreme Court. 

On September 17, 2018, Dukes filed a pro se PCRA petition, claiming 

trial counsel was ineffective for waiving his right to be present at two pretrial 

hearings. PCRA counsel was appointed, but did not file an amended petition. 

Instead, on April 17, 2019, counsel filed a Finley no-merit letter, along with 

____________________________________________

direct appeal. When counsel seeks to withdraw from representation on 

collateral appeal, as here, Turner and Finley apply. See Commonwealth v. 

Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citing Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988) (en banc)). On its own, counsel’s mistake is not fatal to his 

application to withdraw, though, as we have held that “because an Anders

brief provides greater protection to a defendant, this Court may accept an 

Anders brief in lieu of a Turner/Finley letter.” Id. (citation omitted). 

Therefore, our practice in these situations is to accept counsel's Anders brief 

and evaluate whether it substantially satisfies Turner/Finley criteria. See id. 

at 819. 
J-S37013-21

- 3 -

a petition to withdraw as counsel. Counsel stated in the no-merit letter that 

the petition was untimely filed, Dukes failed to invoke an exception to the 

PCRA time-bar, and the issues raised in the petition were without merit. On 

the same date, the PCRA court issued notice of its intent to dismiss the petition 

without a hearing pursuant to Pa.R.Crim.P. 907, based on counsel’s Finley 

letter, and its own conclusion that the issues raised in the petition were 

without merit.

On May 20, 2019, the PCRA court entered an order dismissing Dukes’s 

PCRA petition, stating the issues raised in the petition were without merit, and 

the petition was untimely filed without pleading an exception to the PCRA 

time-bar.3 On June 5, 2019, this timely pro se appeal followed.4

____________________________________________

3 The PCRA court fails to acknowledge an error in its order dismissing the 

petition. In its opinion on appeal, the PCRA court states “PCRA counsel’s Finley 

letter incorrectly opines that appellant’s PCRA petition was untimely filed.” 

PCRA Court Opinion, 9/29/20, at 2. However, as stated above, the PCRA court 

itself relied on this incorrect assertion in its order dismissing the PCRA petition. 

We agree with the court’s opinion on appeal: the petition was not untimely. 

Dukes’ judgment of sentence became final on April 27, 2018, 30 days after 

this Court affirmed his judgment of sentence. Therefore, Dukes had until April 

27, 2019, to timely file a PCRA petition in this matter. His petition - filed on 

September 17, 2018 - was well within the one-year timeframe allowed. 

4 Dukes was still represented by PCRA counsel when he filed the pro se notice 

of appeal. Generally, hybrid representation is forbidden under Pennsylvania 

law. See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 

2016). Therefore, pro se documents filed with a court while the filer is 

represented by counsel are typically rejected as legal nullities. See id. 

However, pro se notices of appeal are an exception to this general rule. See 

id. at 624. Accordingly, Dukes’ pro se notice of appeal was appropriately filed 

and procured our jurisdiction over his appeal.
J-S37013-21

- 4 -

For reasons that are unclear from the record, well over a year then 

passed without any action taken on Dukes’s appeal. On September 29, 2020, 

the PCRA court filed its opinion pursuant to Pa.R.Crim.P. 1925(b).5

On November 6, 2020, with his appeal still pending, Dukes filed a pro 

se motion with our Court, asking “for permission to file an explanation as to 

why his pending appeal should not be quashed.” In the filing, Dukes stated 

that counsel would not file an appellate brief on his behalf because she 

believed the PCRA court had removed her as counsel. However, Dukes 

explained that based on a letter sent from our prothonotary on October 26, 

2020, to Dukes, she was still shown as counsel of record on the appeal docket 

sheet. This filing was forwarded to counsel pursuant to Pa.R.A.P. 3304. See 

Commonwealth v. Jette, 23 A.3d 1032, 1041 (Pa. 2011) (“[O]ur rules of 

appellate procedure provide that whenever a defendant is represented by an 

attorney and the defendant files a pro se motion with the court, the filing will 

not be docketed and will be forwarded to counsel for his consideration.”).

____________________________________________

5 We note there are numerous irregularities in the PCRA court’s opinion. First, 

the court states a hearing was held on the PCRA petition on May 15, 2019, 

that was attended by PCRA counsel. There is no record evidence of a hearing 

on this date, and it appears undisputed from the record that the petition was 

dismissed without a hearing. Next, the PCRA court states it granted counsel 

leave to withdraw. Again, the certified record does not contain any order 

granting the motion to withdraw. Finally, as noted above, the court fails to 

acknowledge its own error in the order dismissing the petition as untimely 

filed. 
J-S37013-21

- 5 -

Interestingly, counsel neither sought withdrawal in this Court or filed a brief 

for Dukes.

On December 7, 2020, finding counsel had failed to file a brief on 

Dukes’s behalf, we remanded to the PCRA court for 30 days to determine 

whether counsel had abandoned Dukes or for counsel to take further action 

as required to protect Dukes’ right to appeal. On April 21, 2021, the PCRA 

court appointed new counsel.6 After multiple continuances, current PCRA 

counsel filed an Anders brief with this Court.

While we found counsel substantially complied with the briefing 

requirements of Turner/Finley, we discovered counsel failed to file a 

contemporaneous application to withdraw from representation and therefore 

there was no evidence that he had advised Dukes of his rights going forward. 

Accordingly, we directed counsel to either file an advocate’s brief or a petition 

to withdraw that met the requirements pursuant to Turner/Finley. 

Counsel has since filed an application to withdraw as counsel and an 

accompanying Anders brief. Before any substantive analysis, we must again 

examine whether current PCRA counsel has met the procedural requirements 

for withdrawing as counsel.

Where, as here, counsel for a PCRA appellant files an Anders brief 

and an application to withdraw, we first examine whether 

____________________________________________

6 Despite this new appointment of counsel, there was no record evidence that 

prior PCRA counsel was ever formally relieved of her duties by the PCRA court. 

To clear up any inconsistencies in the record, we granted former PCRA counsel 

leave to withdraw in our previous memorandum.
J-S37013-21

- 6 -

counsel's brief substantially complies with Turner/Finley

standards. A Turner/Finley brief must: (1) detail the nature and 

extent of counsel's review of the case; (2) list each issue the 

petitioner wishes to have reviewed; and (3) explain counsel's 

reasoning for concluding that the petitioner's issues are meritless. 

Substantial compliance with these requirements is sufficient. 

...

Next, PCRA counsel must send a copy of her brief to the PCRA 

appellant, along with a copy of her petition to withdraw, and 

inform him of his right to proceed pro se or to retain new counsel. 

In conjunction with counsel's request to withdraw, it is important 

to inform the PCRA appellant of his right to proceed pro se and 

raise additional points for our review before this Court examines 

counsel's request to withdraw and the merits of the case. Although 

a party may not typically proceed pro se while represented by 

counsel, there is an exception if appellate counsel has filed a 

Turner/Finley brief, because that filing signifies that the PCRA 

appellant is effectively without counsel. Where an appellant has 

not been apprised of his right to proceed pro se following the filing 

of a Turner/Finley brief, the notice is defective. 

Commonwealth v. Gordon, 237 A.3d 492 (Pa. Super. 2020) (citations 

omitted). 

We find counsel has filed a proper application to withdraw as counsel 

and substantially complied with the requirements of Turner, Finley, and 

Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006).7 Dukes has not 

____________________________________________

7 Of note, while we find counsel has “substantially complied” with the 

Turner/Finley requirements, we find counsel’s poorly drafted letter to Dukes 

advising him of his rights somewhat troubling, especially considering this is 

counsel’s second attempt at a compliant withdrawal. Counsel states in his 

letter to Dukes that he has filed a brief “stating I do not believe in my legal 

opinion your case lacks merit.” Motion to Withdraw, filed 2/4/2022, at 

Exhibits. Taken literally, this would indicate to Dukes that his case does in fact 

have merit. However, since counsel contemporaneously supplied Dukes with 

(Footnote Continued Next Page)
J-S37013-21

- 7 -

filed a response as of this date. We therefore turn to our own independent 

review of the record to determine if we agree with counsel’s conclusion that 

Dukes’s PCRA petition was meritless.

All of Dukes’s claims raised allegations of ineffectiveness of counsel. As 

such, he was required to plead and prove:

ineffective assistance of counsel which, in the circumstances of 

the particular case, so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken 

place ... Appellant must demonstrate: (1) the underlying claim is 

of arguable merit; (2) that counsel had no reasonable strategic 

basis for his or her action or inaction; and (3) but for the errors 

and omissions of counsel, there is a reasonable probability that 

the outcome of the proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005) 

(citations omitted).

Moreover, “[w]e presume counsel is effective and place upon Appellant 

the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d 

1262, 1267-1268 (Pa. Super. 2008) (citation omitted). This Court will grant 

relief only if an appellant satisfies each of the three prongs necessary to prove 

counsel ineffective. See Commonwealth v. Natividad, 938 A.2d 310, 321-

____________________________________________

his Anders brief, which would clarify that he believes Dukes’s issues have no 

merit, we do not find this unfortunate wording is fatal to his application to 

withdraw. We do caution counsel to be more careful in the future. Further, 

while the brief letter does inform Dukes that he has an immediate right to 

proceed pro se or with privately retained counsel, the letter makes no mention 

of any reasons for finding his claims without merit, nor informs Dukes that he 

may raise additional issues on his own. While neither is explicitly required by 

our caselaw, we find counsel has simply done the bare minimum in order for 

us to proceed with our review. 
J-S37013-21

- 8 -

22 (Pa. 2007) (citation omitted). Thus, we may deny any ineffectiveness claim 

if “the petitioner's evidence fails to meet a single one of these prongs.” Id. at 

321 (citation omitted).

In his pro se PCRA petition, Dukes first claims trial counsel was 

ineffective for waiving his right to be present at a suppression hearing.8 The 

suppression hearing was held on the morning of November 10, 2015, prior to 

trial starting later that day. It is clear from a review of the record that Dukes 

was in fact present at the suppression hearing, evidenced by the following 

exchange: 

[DISTRICT ATTORNEY]: And do you see one of the other two 

males that you had stopped before today? 

[WITNESS]: Yes, I do. He’s wearing the blue shirt. 

[DISTRICT ATTORNEY]: Identification of the defendant, Shannon 

Dukes, at the bar of the Court for the record. 

N.T., Motion Hearing, 11/10/2015, at 11. Therefore, his underlying claim lacks 

arguable merit. Further, even if Dukes had been absent from the suppression 

hearing, he failed to present any support for how he was prejudiced by his 

alleged absence from the hearing. Accordingly, Dukes’s first issue is without 

merit. 

____________________________________________

8

In his statement of the first issue, Dukes incorrectly indicates the 

suppression hearing was held on February 11, 2015. The record shows that 

while the suppression motion itself was filed on February 11, 2015, the 

suppression hearing was not held until November 2015. In his explanation of 

the issue, Dukes corrects the original error, and states that the suppression 

hearing was actually held on November 10, 2015. 
J-S37013-21

- 9 -

Next, Dukes argues trial counsel was ineffective for waiving his right to 

be present at a prior bad acts motion hearing held on June 8, 2015. The record 

shows that counsel did waive Dukes’s right to be present at this hearing. See 

N.T., Motion Volume 1, 6/8/2015, at 4. 

Article I, § 9 of the Pennsylvania Constitution and Pennsylvania 

Rule of Criminal Procedure 602 guarantee the right of an accused 

to be present in the courtroom at every stage of a criminal trial. 

Such right, however, is not absolute. A defendant has a due 

process right to be present in his own person whenever his 

presence has a relation, reasonably substantial, to the fullness of 

his opportunity to defend against the charge. Accordingly, the 

defendant is guaranteed the right to be present at any stage of 

the criminal proceeding that is critical to its outcome if his 

presence would contribute to the fairness of the procedure.

Commonwealth v. Tharp, 101 A.3d 736, 762 (Pa. 2014) (citations and 

internal quotation marks omitted). Further, 

It is widely recognized that a defendant's presence during all 

stages of the trial does not extend to purely procedural matters 

preparatory to the trial, particularly where no prejudice has been 

shown. Additionally, courts generally hold that [a] defendant's 

presence is required when testimony of witnesses is received, but 

under certain circumstances when matters of law are being argued 

before the court, such as preliminary pre-trial motions which do 

not affect substantial rights of the defendant, defendant's 

attendance is not required. 

Commonwealth v. McLaurin, 437 A.2d 440, 443 (Pa. Super. 1981) 

(citations omitted). 

Here, Dukes failed to present any support for how he was prejudiced by 

his absence from the prior bad acts motion hearing. Importantly, no witnesses 

testified at the hearing. The hearing consisted solely of legal argument by 

counsel for both sides. Further, the record shows that the Commonwealth’s 
J-S37013-21

- 10 -

motion to admit prior bad acts evidence was denied. Therefore, Dukes can not 

show he was prejudiced by his absence as his counsel prevailed in arguing the 

motion should be denied. Accordingly, Dukes’s second issue is also without 

merit. 

Finally, Dukes claims his original PCRA counsel was ineffective for failing 

to send him a copy of counsel’s Finley no-merit letter, preventing him from 

preserving issues for appeal. 

Prior PCRA counsel’s Finley letter states that Dukes was being 

forwarded a copy of the letter contemporaneously with its filing with the PCRA 

court. Further, the Finley letter included an attachment containing counsel’s 

letter written to Dukes which was appropriately addressed to his prison 

address. 

Even if we assume, arguendo, that Dukes somehow did not initially 

receive the Finley letter, Dukes received the PCRA court’s Rule 907 notice 

which referenced the Finley letter, and there is no indication in the record of 

any attempt by Dukes to request a copy of the Finley letter after receiving 

the Rule 907 notice. 

Finally, Dukes has identified no issues that were not raised in his PCRA 

petition. The PCRA court addressed all of the issues in Dukes’s petition in its 

opinion. See PCRA Court Opinion, 9/29/2020, at 4-7. Similarly, we have 

reviewed all of those issues in the context of counsel’s petition to withdraw 

and found them meritless. Under these circumstances, Dukes has failed to 
J-S37013-21

- 11 -

show he was prejudiced by any failure of original PCRA counsel to send him a 

copy of counsel’s Finley letter. 

For the reasons set forth above, we conclude that Dukes is entitled to 

no relief. The record supports the PCRA court's determinations, and we agree 

with counsel that Dukes’s claims lack merit. Moreover, having conducted an 

independent review of the record in light of the petition to withdraw, we agree 

that the PCRA petition is meritless. 

Accordingly, for the reasons discussed above, we affirm the PCRA court’s 

dismissal of Dukes’s PCRA petition without a hearing. 

 Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/15/2022