J-A21014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEITH HARRIS : : Appellant : No. 284 EDA 2022
Appeal from the PCRA Order Entered December 1, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0600961-2005
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 30, 2022
Keith Harris appeals, pro se, from the order, entered in the Court of
Common Pleas of Philadelphia County, dismissing his petition filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon
review, we reverse and remand for further proceedings.
Harris was convicted by a jury of third-degree murder, conspiracy,
possessing instruments of crime, and firearms not to be carried without a
license. He was sentenced to an aggregate term of 26 to 52 years’
incarceration. This Court affirmed Harris’s judgment of sentence on March 17,
2010. See Commonwealth v. Harris, 996 A.2d 543 (Pa. Super. 2010)
(Table). Our Supreme Court denied Harris’s petition for allowance of appeal
on September 28, 2010. See Commonwealth v. Harris, 9 A.3d 627 (Pa.
2010) (Table). J-A21014-22
On September 26, 2011, Harris filed a timely PCRA petition, his first.
On July 10, 2012, the PCRA court dismissed the petition. Harris filed a timely
appeal and this Court affirmed. See Commonwealth v. Harris, 87 A.3d
887, (Pa. Super. 2013) (Table). Our Supreme Court denied Harris’s petition
for allowance of appeal on April 16, 2014. See Commonwealth v. Harris,
89 A.3d 1283 (Pa. 2014) (Table).
On November 19, 2018, Harris, pro se, filed the instant PCRA petition,
his second. The PCRA court conducted an evidentiary hearing on October 30,
2019, after which it appointed Douglas Dolfman, Esquire, as Harris’s counsel.
In appointing counsel, the PCRA court expressly acknowledged that Harris is
not entitled to counsel on a second or subsequent petition. 1 See N.T.
10/30/19, at 25-28. However, the PCRA court emphasized that it was in the
“interests of justice” to appoint counsel for Harris.2 Id.
On March 26, 2021, Attorney Dolfman filed an amended PCRA petition,
in which he raised no new claims. Rather, Attorney Dolfman conceded that
____________________________________________
1 See Pa.R.Crim.P. 904(D) (“On a second or subsequent petition, when an unrepresented defendant satisfies [to] the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required . . . the judge shall appoint counsel to represent the defendant.”).
2 The trial court, acknowledging that Harris was not well-versed in legal research and argument, noted that Harris’s claims required further development and asked if Harris wished to have counsel appointed. Id. at 24-26. Harris stated that he had been seeking to privately retain counsel but was unsuccessful. Id.; see id. (Harris admitting various letters from, inter alia, the ACLU and private attorneys declining to represent him). Ultimately, Harris accepted the PCRA court’s offer for counsel and Attorney Dolfman was appointed. Id. at 27-28.
-2- J-A21014-22
Harris’s pro se PCRA claims were time-barred, and that no exception applied.
See Amended PCRA Petition, 3/26/21, at 3-5. Attorney Dolfman did not serve
the amended petition to Harris, and the record does not reflect any
correspondence from Attorney Dolfman to Harris.
Subsequently, the PCRA court filed its notice of intent to dismiss Harris’s
petition pursuant to Pa.R.Crim.P. 907. However, the PCRA court served only
the Commonwealth and Attorney Dolfman. Harris was not notified of the PCRA
court’s intent to dismiss and, consequently, Harris did not file a pro se
response. Attorney Dolfman, likewise, did not file a response. On December
1, 2021, the PCRA court dismissed Harris’s petition and served Harris with the
order. Harris filed a timely, pro se, notice of appeal and a pro se court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Harris filed a pro se appellate brief in which he raises three separate
issues that all challenge PCRA counsel’s abandonment of Harris and his claims.
See Brief for Appellant, at 1-10. In his appellate brief, Harris, inter alia,
alleges that his PCRA counsel violated the Pennsylvania Rules of Professional
Conduct by conceding all claims and failing to advocate on his behalf. See
Brief for Appellant, at 4-9. Harris further asserts that Attorney Dolfman never
responded to any of his pro se letters, which are attached as exhibits, and did
not notify Harris that: Attorney Dolfman filed an amended PCRA petition; the
PCRA court intended to dismiss the PCRA petition; or that the PCRA petition
was ultimately dismissed. See Brief for Appellant, at V-VI, 1-10.
-3- J-A21014-22
Attorney Dolfman’s representation, or lack thereof, is concerning. First,
it is clear that “[o]nce counsel has entered an appearance on a defendant’s
behalf[,] he is obligated to continue representation until the case is concluded
or he is granted leave by the court to withdraw his appearance.”
Commonwealth v. Willis, 29 A.3d 393, 397 (Pa. Super. 2011) (emphasis
added); see Pa.R.Crim.P. 120(A)(4) (“An attorney who has been retained or
appointed by the court shall continue such representation through
direct appeal or until granted leave to withdraw by the court.”)
(emphasis added). “[T]he performance of counsel must comply with some
minimum norms, which include not abandoning a client for purposes of
appeal[.]” Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007)
(emphasis added).
Here, as highlighted above, Attorney Dolfman was appointed to
represent Harris and filed an amended PCRA petition.3 However, Attorney
Dolfman did not notify Harris that the PCRA court had filed the Rule 907 notice.
Additionally, the PCRA court, in its Rule 907 notice, only served Attorney
3 We note that Attorney Dolfman’s amended PCRA petition is more akin to a Turner/Finley no-merit letter because he advocates against Harris’s claims. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, despite this similarity, the amended petition falls far short of the Turner/Finley requirements. See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (outlining Turner/Finley no-merit letter requirements). Moreover, even if we considered it a Turner/Finley letter, which we expressly do not, we would similarly remand this case because, inter alia, Dolfman failed to serve Harris with the amended PCRA petition and failed to request withdrawal. See Wrecks, supra.
-4- J-A21014-22
Dolfman, who did not notify Harris of the impending dismissal. Neither
Attorney Dolfman nor Harris filed a response to the Rule 907 notice.
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J-A21014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEITH HARRIS : : Appellant : No. 284 EDA 2022
Appeal from the PCRA Order Entered December 1, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0600961-2005
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 30, 2022
Keith Harris appeals, pro se, from the order, entered in the Court of
Common Pleas of Philadelphia County, dismissing his petition filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon
review, we reverse and remand for further proceedings.
Harris was convicted by a jury of third-degree murder, conspiracy,
possessing instruments of crime, and firearms not to be carried without a
license. He was sentenced to an aggregate term of 26 to 52 years’
incarceration. This Court affirmed Harris’s judgment of sentence on March 17,
2010. See Commonwealth v. Harris, 996 A.2d 543 (Pa. Super. 2010)
(Table). Our Supreme Court denied Harris’s petition for allowance of appeal
on September 28, 2010. See Commonwealth v. Harris, 9 A.3d 627 (Pa.
2010) (Table). J-A21014-22
On September 26, 2011, Harris filed a timely PCRA petition, his first.
On July 10, 2012, the PCRA court dismissed the petition. Harris filed a timely
appeal and this Court affirmed. See Commonwealth v. Harris, 87 A.3d
887, (Pa. Super. 2013) (Table). Our Supreme Court denied Harris’s petition
for allowance of appeal on April 16, 2014. See Commonwealth v. Harris,
89 A.3d 1283 (Pa. 2014) (Table).
On November 19, 2018, Harris, pro se, filed the instant PCRA petition,
his second. The PCRA court conducted an evidentiary hearing on October 30,
2019, after which it appointed Douglas Dolfman, Esquire, as Harris’s counsel.
In appointing counsel, the PCRA court expressly acknowledged that Harris is
not entitled to counsel on a second or subsequent petition. 1 See N.T.
10/30/19, at 25-28. However, the PCRA court emphasized that it was in the
“interests of justice” to appoint counsel for Harris.2 Id.
On March 26, 2021, Attorney Dolfman filed an amended PCRA petition,
in which he raised no new claims. Rather, Attorney Dolfman conceded that
____________________________________________
1 See Pa.R.Crim.P. 904(D) (“On a second or subsequent petition, when an unrepresented defendant satisfies [to] the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required . . . the judge shall appoint counsel to represent the defendant.”).
2 The trial court, acknowledging that Harris was not well-versed in legal research and argument, noted that Harris’s claims required further development and asked if Harris wished to have counsel appointed. Id. at 24-26. Harris stated that he had been seeking to privately retain counsel but was unsuccessful. Id.; see id. (Harris admitting various letters from, inter alia, the ACLU and private attorneys declining to represent him). Ultimately, Harris accepted the PCRA court’s offer for counsel and Attorney Dolfman was appointed. Id. at 27-28.
-2- J-A21014-22
Harris’s pro se PCRA claims were time-barred, and that no exception applied.
See Amended PCRA Petition, 3/26/21, at 3-5. Attorney Dolfman did not serve
the amended petition to Harris, and the record does not reflect any
correspondence from Attorney Dolfman to Harris.
Subsequently, the PCRA court filed its notice of intent to dismiss Harris’s
petition pursuant to Pa.R.Crim.P. 907. However, the PCRA court served only
the Commonwealth and Attorney Dolfman. Harris was not notified of the PCRA
court’s intent to dismiss and, consequently, Harris did not file a pro se
response. Attorney Dolfman, likewise, did not file a response. On December
1, 2021, the PCRA court dismissed Harris’s petition and served Harris with the
order. Harris filed a timely, pro se, notice of appeal and a pro se court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Harris filed a pro se appellate brief in which he raises three separate
issues that all challenge PCRA counsel’s abandonment of Harris and his claims.
See Brief for Appellant, at 1-10. In his appellate brief, Harris, inter alia,
alleges that his PCRA counsel violated the Pennsylvania Rules of Professional
Conduct by conceding all claims and failing to advocate on his behalf. See
Brief for Appellant, at 4-9. Harris further asserts that Attorney Dolfman never
responded to any of his pro se letters, which are attached as exhibits, and did
not notify Harris that: Attorney Dolfman filed an amended PCRA petition; the
PCRA court intended to dismiss the PCRA petition; or that the PCRA petition
was ultimately dismissed. See Brief for Appellant, at V-VI, 1-10.
-3- J-A21014-22
Attorney Dolfman’s representation, or lack thereof, is concerning. First,
it is clear that “[o]nce counsel has entered an appearance on a defendant’s
behalf[,] he is obligated to continue representation until the case is concluded
or he is granted leave by the court to withdraw his appearance.”
Commonwealth v. Willis, 29 A.3d 393, 397 (Pa. Super. 2011) (emphasis
added); see Pa.R.Crim.P. 120(A)(4) (“An attorney who has been retained or
appointed by the court shall continue such representation through
direct appeal or until granted leave to withdraw by the court.”)
(emphasis added). “[T]he performance of counsel must comply with some
minimum norms, which include not abandoning a client for purposes of
appeal[.]” Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007)
(emphasis added).
Here, as highlighted above, Attorney Dolfman was appointed to
represent Harris and filed an amended PCRA petition.3 However, Attorney
Dolfman did not notify Harris that the PCRA court had filed the Rule 907 notice.
Additionally, the PCRA court, in its Rule 907 notice, only served Attorney
3 We note that Attorney Dolfman’s amended PCRA petition is more akin to a Turner/Finley no-merit letter because he advocates against Harris’s claims. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, despite this similarity, the amended petition falls far short of the Turner/Finley requirements. See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (outlining Turner/Finley no-merit letter requirements). Moreover, even if we considered it a Turner/Finley letter, which we expressly do not, we would similarly remand this case because, inter alia, Dolfman failed to serve Harris with the amended PCRA petition and failed to request withdrawal. See Wrecks, supra.
-4- J-A21014-22
Dolfman, who did not notify Harris of the impending dismissal. Neither
Attorney Dolfman nor Harris filed a response to the Rule 907 notice.
Moreover, the PCRA court did not enter an order granting withdrawal or
otherwise removing Attorney Dolfman. Attorney Dolfman, similarly, has not
filed an advocate’s brief or any filings with this Court. Ultimately, it appears
that Harris, after being appointed counsel “in the interests of justice,” was left
to fend for himself.
In light of the foregoing, we conclude that Attorney Dolfman has
abandoned Harris during PCRA proceedings as well as on appeal before this
Court. See Willis, supra; Bennett, supra. Thus, we reverse the dismissal
of Harris’s PCRA petition and remand for the PCRA court to appoint new
counsel.4 Harris and his newly appointed counsel shall be afforded the
opportunity to file an amended PCRA petition or, if appropriate, a
Turner/Finley no-merit letter. Accordingly, we reverse the dismissal of
Harris’s PCRA petition and reverse for further proceedings consistent with this
memorandum.5
4 Like the PCRA court, we acknowledge that a second or subsequent PCRA petitioner is not entitled to counsel. See Pa.R.Crim.P. 904(D). Nevertheless, as the PCRA court saw fit to appoint counsel for Harris, see id., we remand for the appointment of new counsel because Attorney Dolfman’s representation of Harris was so deficient that it resulted in abandonment and Attorney Dolfman failed to act as an appropriate advocate for the purposes of his appointment. See Pa.R.Crim.P. 120(A)(4); Bennett, supra.
5 Upon remand, we note that in removing Attorney Dolfman, the PCRA court may consider sanctions including, but not limited to, reporting him to the disciplinary board for abandoning Harris.
-5- J-A21014-22
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/30/2022
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