Commonwealth v. Hall

Full title: COMMONWEALTH OF PENNSYLVANIA, Appellee v. VERNON HALL, Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Apr 10, 2015

J-S04036-15 (Pa. Super. Ct. Apr. 10, 2015)

Opinion

J-S04036-15 No. 392 MDA 2014

04-10-2015

COMMONWEALTH OF PENNSYLVANIA, Appellee v. VERNON HALL, Appellant

CONCURRING STATEMENT BY BOWES, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order January 28, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000752-2012, CP-35-CR-0001776-2011
BEFORE: BOWES, ALLEN, and STRASSBURGER,^* JJ. CONCURRING STATEMENT BY BOWES, J.:

* Retired Senior Judge assigned to the Superior Court.

I join in the decision of my learned colleagues. I write further only to address several key points in light of our remand. First, Appellant is proceeding pro se because PCRA counsel was permitted to withdraw under Turner/Finley practice. Since, contrary to Appellant's representation in his brief, he did not raise a credit for time served complaint in his underlying PCRA petition, and the record does not reveal the issue, I do not fault counsel for not addressing the claim. See Commonwealth v. Rykard , 55 A.3d 1177, 1190 n.9 (Pa.Super. 2012). Nonetheless, because Appellant's nonwaivable position may raise a question of fact that cannot be resolved by the current record, he is entitled to counsel for purposes of any evidentiary hearing. See Pa.R.Crim.P. 904. Of course, Appellant may elect to waive that right after an appropriate colloquy.

Finally, I voice my strong disapproval of the PCRA court's intentional disregard of Pa.R.Crim.P. 907 based on this Court's decision in Commonwealth v. Bond , 630 A.2d 1281 (Pa.Super. 1993). Bond cannot be read to eviscerate a criminal rule of procedure in Turner/Finley cases. Pointedly, Bond is appropriately limited to the precise facts therein, and did not hold that Rule 907 notice is not mandatory in Turner/Finley cases. Moreover, in my view, Bond is no longer sound law in light of our Supreme Court's subsequent decision in Commonwealth v. Pitts , 981 A.2d 875 (Pa. 2009), which requires petitioners to file a response to a Rule 907 notice to preserve issues of Turner/Finley counsel ineffectiveness. The failure of the court to supply such a notice would preclude petitioners from complying with Pitts . Accordingly, I would urge the PCRA court to abide by the clear mandate of Rule 907.

With these additions in mind, I join the distinguished majority.