Com. v. Corbett, T.

• Court: Superior Court of Pennsylvania
• Decided: September 10, 2019
• Docket: 2040 EDA 2017
• Status: Unpublished

Opinion

J-S35041-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TYREEK CORBETT, : : Appellant : No. 2040 EDA 2017

Appeal from the PCRA Order June 2, 2017 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1007721-1997

BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 10, 2019

Tyreek Corbett (Appellant) pro se appeals from the June 2, 2017 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we remand for further

proceedings consistent with this memorandum.

We glean the following factual and procedural history from the record.

On November 17, 1996, Appellant and Anthony Baker fired numerous shots

at James Ward, Cleveland Scott, Eric Woodson, and Leroy DeShield. Ward

died as a result of the gunshot wounds. Scott identified Appellant as one of

the shooters, and another eyewitness identified Appellant as being at the

scene, standing over Ward’s body after the shooting.

Following a jury trial, Appellant was convicted of first-degree murder,

possessing an instrument of crime, and criminal conspiracy. Appellant was

*Retired Senior Judge assigned to the Superior Court. J-S35041-19

sentenced to life imprisonment for the murder conviction, followed by an

aggregate term of incarceration of 8 to 16 years on the remaining

convictions. On appeal, this Court affirmed Appellant’s judgment of

sentence, and our Supreme Court denied his petition for allowance of appeal

on November 1, 2000. Commonwealth v. Corbett, 761 A.2d 1231 (Pa.

Super. 2000) (unpublished memorandum), appeal denied, 764 A.2d 1064

(Pa. 2000).

Appellant, through counsel, timely filed his first PCRA petition on

October 24, 2001, and a supplemental amended petition on April 15, 2003.

The PCRA court dismissed the petition without a hearing. On appeal, this

Court affirmed that order, and our Supreme Court denied his petition for

allowance of appeal. Commonwealth v. Corbett, 888 A.2d 3 (Pa. Super.

2005) (unpublished memorandum), appeal denied, 895 A.2d 1259 (Pa.

2006).

On July 25, 2014, Appellant, through privately-retained counsel, Alan

Tauber, Esquire, filed the instant PCRA petition, claiming that his petition

was timely filed pursuant to the newly-discovered facts exception to the

PCRA’s time-bar. Specifically, Appellant claimed that he filed his petition

within 60 days of learning of an alleged eyewitness, Vernon Oliver, who

would testify that Appellant was not one of the shooters. Additionally,

Appellant argued that he was entitled to relief based on this after-discovered

evidence. PCRA Petition, 7/25/2014, at 2-4. Appellant subsequently filed an

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amended PCRA petition, adding another newly-discovered fact and after-

discovered evidence claim regarding another eyewitness, Eric Butler.

Amended PCRA Petition, 9/18/2014, at 3-5.

The PCRA court held an evidentiary hearing on Appellant’s after-

discovered evidence claims on March 9, 2017. Oliver and Butler testified at

the hearing. On June 2, 2017, the PCRA court dismissed Appellant’s PCRA

petition. This timely-filed pro se appeal followed.1

Although Appellant pro se filed a notice of appeal, the record indicated

that Appellant was still represented by Attorney Tauber. Therefore, on

August 11, 2017, this Court issued an order directing Attorney Tauber to

show cause why he was not counsel of record. Per Curiam Order,

8/11/2017. Attorney Tauber responded, notifying this Court that he advised

Appellant of his appellate rights following the PCRA court’s dismissal of his

PCRA petition. Additionally, Attorney Tauber advised Appellant that

pursuant to their engagement agreement, he had been retained solely for

purposes of litigating the PCRA petition. As such, relying on the terms of the

engagement agreement, Appellant pro se filed the instant notice of appeal,

and Attorney Tauber did not seek formally to withdraw as counsel before the

PCRA court. Response, 8/28/2017. On October 2, 2017, Attorney Tauber

filed a request for leave to withdraw as counsel with this Court, which this

Court granted. Per Curiam Order, 10/23/2017.

1 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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Before reaching the merits of Appellant’s claims on appeal, we must

determine first whether he is properly proceeding pro se.

The United States Supreme Court has held that there is no Sixth Amendment right or due process right to counsel during collateral review. Our Supreme Court also declined to find a corresponding Pennsylvania constitutional right to counsel during PCRA review. However, it is undisputed that first[-]time PCRA petitioners have a rule-based right to counsel. Accordingly, our Supreme Court has repeatedly emphasized that there is a right to effective assistance of PCRA counsel.

Commonwealth v. Figueroa, 29 A.3d 1177, 1181 n.6 (Pa. Super. 2011)

(citations omitted).

For second and subsequent petitions, a petitioner is not entitled to the

appointment of counsel unless the petitioner proves he “is unable to afford

or otherwise procure counsel, and an evidentiary hearing is required[.]”

Pa.R.Crim.P. 904(D). In such an instance, counsel must be appointed, and

appointed counsel shall continue representation throughout the PCRA

proceedings, including any appeal therefrom. Pa.R.Crim.P. 904(F)(2).

Although this was Appellant’s second PCRA petition, he may have had

a rule-based right to counsel, as the PCRA court determined that an

evidentiary hearing was required. However, because Appellant retained

private counsel prior to filing his petition, the PCRA court did not determine

whether Appellant was unable to afford or otherwise procure counsel, which

would have entitled him to appointed counsel pursuant to Pa.R.Crim.P.

904(D).

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Ordinarily, and despite any purported engagement agreement, once

privately-retained counsel enters an appearance, counsel is obligated to

continue representation through direct appeal or until granted permission to

withdraw. Pa.R.Crim.P. 120(A)(4), (B)(1). Attorney Tauber did not seek to

withdraw until after Appellant pro se filed the instant notice of appeal and

this Court directed Attorney Tauber to show cause as to why he was not

counsel of record. Although this Court granted Attorney Tauber’s petition to

withdraw, if Appellant is unable to afford or otherwise procure counsel, his

rule-based right to counsel for his second PCRA petition remains in effect on

appeal. See Pa.R.Crim.P. 904(D) and (F)(2).

Accordingly, we remand to the PCRA court to conduct any proceedings

it deems necessary to determine whether Appellant is entitled to appointed

counsel for this appeal. The PCRA court shall file an opinion with this Court

within 30 days as to one of the following: (1) If the PCRA court determines

that Appellant was entitled to appointed counsel on his second PCRA

petition, the PCRA court shall appoint new counsel. The PRA court shall

additionally order appointed counsel to file a Pa.R.A.P. 1925(b) statement on

Appellant’s behalf. (2) If Appellant is entitled to appointed counsel, but

indicates he would like to proceed pro se, the PCRA court shall conduct an

on-the-record colloquy to ensure the decision to waive counsel is knowing,

intelligent, and voluntary. See Commonwealth v. Grazier, 713 A.2d 81

(Pa. 1998). (3) If Appellant is able to afford or otherwise procure counsel,

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but declines to do so, the PCRA court shall advise this Court and this appeal

shall proceed accordingly.

Case remanded for proceedings consistent with this memorandum.

Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/10/19

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