Com. v. Harrison, N.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 748 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003460-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 749 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002948-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 750 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005786-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. : : :

NYHEEM HARRISON : :

Appellant : No. 751 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005788-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 752 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005789-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 753 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005790-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

3

NYHEEM HARRISON : :

Appellant : No. 754 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005791-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 755 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005792-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 756 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005793-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 757 EDA 2024

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Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005794-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 758 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005796-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 759 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005798-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 760 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024

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In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008004-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 761 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008011-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 762 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008012-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. : : :

NYHEEM HARRISON : :

Appellant : No. 763 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008240-2021

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COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

NYHEEM HARRISON :

:

Appellant : No. 764 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008241-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

NYHEEM HARRISON :

:

Appellant : No. 765 EDA 2024

Appeal from the PCRA Order Entered February 15, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005787-2021

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

JUDGMENT ORDER BY STEVENS, P.J.E.: FILED APRIL 7, 2025

Appellant Nyheem Harrison appeals from the order of the Court of

Common Pleas of Philadelphia County denying his petition pursuant to the

Post-Conviction Relief Act (PCRA). 1 After careful review, we vacate the PCRA

court’s order and remand for further proceedings consistent with this decision.

____________________________________________

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541-9546.

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On October 14, 2022, Appellant entered a negotiated, global guilty plea

to multiple charges across eighteen dockets, which included counts of third-

degree murder, conspiracy to commit murder, conspiracy to commit

aggravated assault, aggravated assault, and violations of the Uniform Firearm

Act (VUFA). On the same day, the trial court entered the negotiated aggregate

sentence of thirty to sixty years’ imprisonment across all eighteen dockets.

Appellant did not file a post-sentence motion or direct appeal. Jeremy Alva,

Esq. served as Appellant’s plea counsel.

On September 26, 2023, Appellant filed a pro se PCRA petition. The

PCRA court appointed George Yacoubian, Esq. (“PCRA counsel”), who

subsequently filed a petition to withdraw as counsel and a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On

November 30, 2023, the PCRA court issued notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

On December 20, 2023, Appellant filed a pro se response to the PCRA

court’s Rule 907 notice, which he alleged the PCRA counsel had provided

ineffective assistance. On January 11, 2024, PCRA counsel filed a

supplemental Turner-Finley letter, indicating that Appellant’s pro se

response did not alter his conclusion that the appeal was without merit. On

January 24, 2024, Appellant filed an amended pro se petition.

On February 15, 2024, the PCRA court dismissed Appellant’s petition

without addressing Appellant’s claims of PCRA counsel’s ineffectiveness and

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granted PCRA counsel permission to withdraw. This timely appeal followed.

During the pendency of this appeal, on May 20, 2024, the PCRA court filed an

opinion requesting that this Court vacate its dismissal order and remand for

the trial court to appoint Appellant counsel pursuant to Commonwealth v.

Betts, 240 A.3d 616 (Pa.Super. 2020) to address Appellant’s claims of PCRA

counsel’s ineffectiveness.2

A PCRA petitioner has a “rule-based right to effective counsel [that]

extends throughout the entirety of his first PCRA proceeding.” Id. at 623

(citing Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562, 583 (2013)

(establishing that “the right to counsel conferred on initial PCRA review means

an ‘enforceable right’ to the effective assistance of counsel”) (citation

omitted)).

To successfully assert a claim of PCRA counsel’s ineffectiveness, a

petitioner must raise such a challenge at the first opportunity to do so, which

includes a timely response to a PCRA court’s notice of intent to dismiss the

petition pursuant to Rule 907. Commonwealth v. Bradley, 669 Pa. 107,

141, 261 A.3d 381, 401 (2021). In this case, Appellant timely raised a claim

of PCRA counsel’s ineffectiveness in response to the PCRA court’s Rule 907

notice after counsel filed a petition to withdraw his representation.

____________________________________________

2 The Commonwealth agrees that the PCRA court’s dismissal order was made

in error and that a remand for the appointment of substitute counsel is necessary to comply with Betts.

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However, this action created a conflict as PCRA counsel could not

meaningfully raise claims of his own ineffectiveness. See Betts, 240 A.3d at

623 (citing Commonwealth v. Spotz, 18 A.3d 244, 329 n. 52 (Pa. 2011)

(emphasizing that “counsel cannot argue his or her own ineffectiveness”). As

Appellant could not rely on PCRA counsel to assist him in developing his

allegations of PCRA counsel’s ineffectiveness, the PCRA court erred in

dismissing Appellant’s first PCRA petition without affording him substitute

counsel to address his allegations of PCRA counsel’s ineffectiveness. As such,

we remand for the appointment of substitute PCRA counsel “to ensure that

Appellant’s interests are adequately represented and his right to counsel fully

realized.” Betts, 240 A.3d at 624.

As such, we vacate the PCRA court’s dismissal order and remand for the

PCRA court to comply with the following instructions set forth in Betts:

on remand, we direct the PCRA court to appoint substitute PCRA counsel to represent Appellant. Newly-appointed PCRA counsel shall: (1) review Appellant's pro se objections concerning Attorney [Yacoubian’s] ineffectiveness; (2) file supplemental briefing limited to discussing the merits of those claims within a reasonable time frame; and (3) continue to represent Appellant for the duration of these PCRA proceedings. The Commonwealth shall have an opportunity to file a response to any supplemental filings from Appellant. Thereafter, the PCRA court shall have the discretion to proceed as it deems fit under Pennsylvania law and the Pennsylvania Rules of Criminal Procedure, including ordering further proceedings and granting or denying Appellant's PCRA petition.

Id. at 625.

Order vacated. Case remanded. Jurisdiction relinquished.

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Date: 4/7/2025