Com. v. Helsel, D.

• Court: Superior Court of Pennsylvania
• Decided: August 16, 2022
• Docket: 872 WDA 2021
• Status: Unpublished

Opinion

J-S11042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID ALLEN HELSEL : : Appellant : No. 872 WDA 2021

Appeal from the PCRA Order Entered June 9, 2021 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001679-2009

BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 16, 2022

David Allen Helsel (“Helsel”) appeals from the order denying his third

petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Additionally, Helsel’s counsel, Paul M. Puskar, Esquire (“Attorney Puskar”), has

filed a motion to withdraw as counsel and an accompanying brief styled

pursuant to Anders v. California, 386 U.S. 738, 744 (1967).2 We grant

Attorney Puskar’s motion and affirm the PCRA court’s order.

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1 See 42 Pa.C.S.A. §§ 9541-9546.

2 Counsel petitioning to withdraw from PCRA representation must proceed not under Anders but under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Although Anders and Turner/Finley are close cousins, bearing similarities in that counsel is required to examine the record, present issues, and request permission to withdraw, there are also significant differences, as explained infra. See Commonwealth v. Wrecks, 931 A.2d 717, 721-22 (Pa. Super. 2007). J-S11042-22

This Court previously summarized the relevant factual history of this

matter as follows:

On June 19, 2009, Helsel came upon several juveniles in a cemetery in Altoona. Posing as a cemetery employee, he informed them that there had been reports that they were knocking over headstones. The teens denied committing any acts of vandalism. After a brief physical altercation with one of the males, Helsel separated the two females from the group—M.B., age 12, and L.G., age 15—by telling them they had to come with him to the owner’s house. He led them, holding them by the wrists for part of the way. The girls stated they did not run when Helsel released his grip because they were afraid. Upon reaching a wooded area, Helsel drew a knife and informed the girls he wanted to touch them all over their bodies. Fearing he would hurt them, the victims negotiated with Helsel, eventually agreeing that he could rub his penis against each of their backsides, and then they would be free to go. He engaged in this behavior with L.G. and then with M.B. Helsel told M.B. he wanted to have sex with her, and the victims tried to run away. At that, Helsel grabbed M.B. by the hair and pulled her further into the woods. While in the woods, Helsel attempted to take off M.B.’s shorts and to spread her legs, while M.B. fought to stop him.

L.G. ran to a nearby building that happened to be hosting a meeting of the Fraternal Order of Police. She informed police what had happened, and Patrolman Shaun McCready and Patrolman (now Corporal) Michael Sapienza went in search of M.B. and Helsel. Patrolman McCready heard a girl screaming, and upon reaching a cut-in that led into the woods, he saw M.B. sitting with her back facing him and Helsel standing directly in front of her. He drew his weapon and told Helsel to get on the ground, at which Helsel fled. As the police ran after him, M.B. shouted that Helsel raped her. According to Corporal Sapienza, who came to the clearing immediately after Patrolman McCready, M.B. was naked from the waist down.

Multiple officers responded to assist in the search for Helsel. Corporal Sapienza apprehended him near the wood line at 15th Street and Bell Avenue; Helsel was found hiding under a pile of leaves, dirt and branches. A search incident to arrest revealed a knife in Helsel’s pocket. [Police charged Helsel with 37 counts of various crimes.]

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Commonwealth v. Helsel, 87 A.3d 383 (Pa. Super. 2013) (unpublished

memorandum at *1-2).

In 2011, following a three-day trial, a jury convicted Helsel of attempted

rape by forcible compulsion, attempted rape of a child, and multiple other

offenses. Because Helsel had two prior convictions for rape, the sentencing

court sentenced him as a third-strike sexual offender, ordering him to be

imprisoned for life pursuant to 42 Pa.C.S.A. § 9718.2(a)(2). On direct appeal,

this Court vacated the judgment of sentence and remanded for resentencing

as a second-strike offender. In so ruling, this Court explained that “[a]lthough

this is [Helsel’s] third conviction of a crime that requires him to register as a

sexual offender resulting from three separate criminal transactions, because

he served a single prison term for the first two convictions, he only had one

opportunity to reform, not two.” Commonwealth v. Helsel, 53 A.3d 906,

917 (Pa. Super. 2012). On remand, the trial court sentenced Helsel to an

aggregate sentence of seventy-three to 146 years of incarceration. This Court

affirmed the judgment of sentence and our Supreme Court denied allowance

of appeal on March 12, 2014. See Commonwealth v. Helsel, 87 A.3d 383

(unpublished memorandum at *17), appeal denied, 87 A.3d 318 (Pa. 2014).

Helsel did not seek review in the United States Supreme Court.

In 2015, Helsel filed a pro se PCRA petition. After the PCRA court

appointed counsel, Helsel directed counsel to withdraw the petition. In 2017,

Helsel filed his second pro se PCRA petition which the PCRA court dismissed

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as untimely. This Court affirmed the dismissal order. See Commonwealth

v. Helsel, 195 A.3d 997 (Pa. Super. 2018) (unpublished memorandum).

On August 10, 2020, Helsel filed the instant pro se PCRA petition, his

third. The PCRA court appointed Attorney Puskar as counsel.3 On March 15,

2021, the PCRA court conducted an evidentiary hearing. On June 9, 2021,

the PCRA court entered an order denying the petition as untimely filed. Helsel

filed a pro se motion for extension of time to file an appeal which the PCRA

court granted.4 On July 19, 2021, Helsel filed a pro se notice of appeal within

the time period permitted by the PCRA court’s order.5 Helsel thereafter filed

3 Although there is no right to counsel on a second or subsequent PCRA petition, the PCRA court acted within its discretion to appoint Attorney Puskar to determine the timeliness of Helsel’s third petition and to represent him at an evidentiary hearing. See Pa.R.Crim.P. 904(D), (E).

4 As Helsel was represented by Attorney Puskar, the PCRA court should have rejected the motion as an improper hybrid filing and forwarded the motion to counsel. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (holding that our courts have made clear that a defendant who is represented by counsel may not engage in hybrid representation by filing pro se documents).

5 We note with disapproval that the time for filing an appeal is jurisdictional and cannot be extended by an order of court. See Pa.R.A.P. 903(a) (providing, in relevant part, “the notice of appeal required by Rule 902 . . . shall be filed within 30 days after the entry of the order from which the appeal is taken”). Thus, the PCRA court lacked the authority to enter an order granting Helsel’s pro se motion for extension of time to file an appeal. Nevertheless, Helsel relied on that order in filing his untimely pro se notice of appeal. Accordingly, as we conclude that a breakdown in the process of the trial court caused Helsel to file his notice of appeal out of time, we will address his appeal. See Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa. Super. 2002) (holding that this Court will address an otherwise untimely appeal if

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a counseled Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal,6 and the trial court relied on its opinion entered on June 9, 2021, in

lieu of preparing a Rule 1925(a) opinion. In this Court, Helsel’s counsel filed

a motion to withdraw as counsel and an accompanying brief styled pursuant

to Anders.

At the outset of our review, we note that this case does not implicate

Anders. As explained above, Anders applies to direct appeals, whereas

Turner/Finley applies to PCRA cases. This Court has explained the

differences between the requirements imposed by Anders and

Turner/Finley, as follows:

Anders counsel is not permitted to withdraw unless the appeal is wholly frivolous, but Turner/Finley counsel is permitted to do so if the case lacks merit, even if it is not so anemic as to be deemed wholly frivolous. Also, Anders counsel must not argue against the client’s interests while Turner/Finley counsel must do so, articulating why the client’s claims have no merit.

The heightened protection afforded to Anders appellants as compared to Turner/Finley petitioners/appellants arises because the right to counsel on direct appeal and the right to the direct appeal itself are constitutional ones. By comparison, a first-time PCRA petitioner’s right to counsel is born of rule, namely ____________________________________________

fraud or breakdown in the trial court’s processes resulted in an untimely appeal).

6 Upon receipt of the pro se notice of appeal, this Court noted that Attorney Puskar filed a petition to withdraw from representation four days after Helsel filed his untimely pro se notice of appeal. As the petition was never ruled upon, this Court issued an order directing the PCRA court to determine Helsel’s representation status. The PCRA court responded via correspondence indicating that Attorney Puskar remained as Helsel’s counsel and had filed a Rule 1925(b) concise statement of errors complained of on appeal.

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Pa.R.Crim.P. 904(C), and that right does not spring from the federal or state constitutions.

Wrecks, 931 A.2d at 722 (citations omitted).

Because an Anders brief provides greater protection to a defendant,

this Court may accept an Anders brief in lieu of a Turner/Finley “no merit”

letter. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super.

2011). However, prior to addressing the merits of the issues raised for our

review, we must assess whether counsel’s filings satisfy the technical

requirements of Turner/Finley. See Commonwealth v. Muzzy, 141 A.3d

509, 510 (Pa. Super. 2016) (holding that “prior to addressing the merits of

the appeal, we must review counsel’s compliance with the procedural

requirements for withdrawing as counsel”).

Counsel seeking to withdraw from PCRA representation 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. Counsel must also send a copy of the brief to the petitioner, along with a copy of the petition to withdraw, and inform the petitioner of the right to proceed pro se or to retain new counsel. If the brief meets these requirements, we then conduct an independent review of the petitioner’s issues.

Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super. 2019).

As noted above, Attorney Puskar filed a motion to withdraw and a brief

styled pursuant to Anders. Attorney Puskar has provided this Court with a

copy of a letter dated November 4, 2021, which he sent to Helsel informing

him of counsel’s belief that the appeal is frivolous and indicating that counsel

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had filed a motion to withdraw. See Letter, 11/4/21, at 1. Attorney Puskar

also advised Helsel of his rights to retain replacement counsel or proceed pro

se.7 Id. The letter indicates that a copy of the motion to withdraw was

included in the mailing. Id. Attorney Puskar has also provided this Court with

a copy of a letter dated November 10, 2021, which he sent to Helsel informing

him that he could raise any additional points with this Court that counsel failed

to raise in the brief. See Letter, 11/10/21, at 1. While neither letter indicates

that a copy of the brief was included in the mailing, the certificate of service

for the brief indicates that Attorney Puskar mailed Helsel a copy of the brief

at the same time that Attorney Puskar mailed copies to the PCRA court and

the Commonwealth.8

The brief filed by Attorney Puskar does not detail the nature and extent

of his review of the case and recites, in the barest form, the factual and

procedural history of the case. Attorney Puskar incorrectly states that this is

Helsel’s second PCRA petition when, in fact, it is his third petition. Attorney

Puskar indicates that Helsel alleged in his pro se petition that “his sentence is

7The November 4, 2021 letter was not appended to the motion to withdraw. Accordingly, this Court entered an order directing Attorney Puskar to file a copy of the letter within seven days, and counsel complied with that order. Counsel also provided this Court with a copy of a letter that he sent to Helsel on November 10, 2021.

8 We note that the certificate of service attached to the brief indicates that copies of the brief were mailed to Helsel, the Commonwealth, and to the PCRA court on November 4, 2021; however, the brief was not filed in this Court until November 22, 2021.

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illegal because there was only one victim and both of the charges arose out of

the same incident.” Anders Brief, 11/22/21, at 5. However, given that Helsel

was convicted of multiple crimes, Attorney Puskar’s description of Helsel’s

issue is patently deficient. Most troubling, however, is Attorney Puskar’s

“discussion” of the issue raised by Helsel in his pro se petition and whether he

pleaded and proved the applicability of any of the PCRA’s timeliness

exceptions:

[Helsel] maintained that he fit under the government interference exception and the after-discovered information exception in 42 Pa.C.S.A. § 9454(b)(1)(i), (ii). A review of the record, including especially the PCRA hearing, reveals that there was no merit to either of those assertions. The decision by the PCRA court was supported in the record and was consistent with the law.

Anders Brief, 11/22/21, at 6-7 (paragraph formatting omitted).

Attorney Puskar’s explanation for his conclusion that Helsel’s issue is

meritless is woefully inadequate to fulfill counsel’s duties under

Turner/Finley. While we could direct Attorney Puskar to file a “no merit”

letter compliant with the dictates of Turner/Finley, we decline to do so

because this matter does not involve the right to counsel in a first PCRA

petition, and because a review of Helsel’s underlying claim for relief reveals

that it is procedurally barred and, in any event, meritless.

To be entitled to PCRA relief, a petitioner must establish “[t]hat the

allegation of error has not been previously litigated or waived.” 42 Pa.C.S.A.

§ 9543(a)(3). An issue is “previously litigated” when, inter alia, “the highest

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appellate court in which the petitioner could have had review as a matter of

right has ruled on the merits of the issue.” Id. § 9544(a)(2).

Here, the sole issue raised in Helsel’s third pro se PCRA petition is that

his consecutive sentences “for attempted rape of a child and attempted rape

by forcible compulsion [are] illegal because there was one victim and one

criminal event.” Pro Se PCRA Petition, 8/10/20, at 4. This issue was

previously raised by Helsel in his direct appeal. Therein, Helsel argued to this

Court “that he was convicted at trial of criminal attempt, rape by forcible

compulsion, and criminal attempt, rape of a child for one criminal event

involving one victim, M.B . . . and that the trial court illegally imposed two

consecutive 25 to 50 year sentences . . ..” Helsel, 87 A.3d 383 (unpublished

memorandum at *9) (internal quotations and citations to the record omitted).

This Court addressed Helsel’s issue and determined that it lacked merit,

explaining:

Like sexual assault and statutory sexual assault, rape by forcible compulsion and rape of a child each includes an additional element not included in the other. Rape by forcible compulsion requires the use or threat of force, but has no age restriction. Rape of a child does not require forcible compulsion, but only that the complainant be under the age of thirteen. Because rape by forcible compulsion and rape of a child contain different elements, we reject Helsel’s argument that a defendant cannot be found guilty of, and sentenced for, both offenses.

Helsel further argues that “the trial court’s finding that rape of a child and rape by forcible compulsion are two separate crimes fails because these two are subsections of the same statute, the rape statute, and are not two separate offenses.” [Helsel’s] Brief, at 16. We disagree based on the specific wording of the statute. Section 3121(a)(1) provides: “Offense defined. - A person

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commits a felony of the first degree when the person engages in sexual intercourse with a complainant by forcible compulsion” (emphasis added). Section 3121(c) provides: “Rape of a child. - A person commits the offense of rape of a child, a felony of the first degree, when the person engages in sexual intercourse with a complainant who is less than 13 years of age” (emphasis added). Section 3121 refers to rape by forcible compulsion and rape of a child as separate offenses. Based on the language of the statute, they are separate crimes, and do not merge for sentencing purposes. See 18 Pa.C.S.[A.] § 105 (“The provisions of the [Crimes Code] shall be construed according to the fair import of their terms, but when the language is susceptible of different constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved”).

Helsel, 87 A.3d 383 (unpublished memorandum at *13-15).9

Given that the highest appellate court in which Helsel could have had

review as a matter of right has ruled on the merits of the issue he wishes to

raise in this appeal, his claim is procedurally barred. See 42 Pa.C.S.A.

§ 9543(a)(3). Therefore, we conclude that directing Attorney Puskar to file a

“no-merit” letter compliant with Turner/Finley would be futile. See

Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006) (holding that

remand for appointment of counsel for a first-time petitioner would be futile

because the petitioner was ineligible for relief, having fully served his

sentence); see also Commonwealth v. Myers, 403 A.2d 85, 87 (Pa. 1979)

9 Notably, Helsel raised the same issue in his second pro se PCRA petition. In affirming the dismissal of that petition, this Court determined that Helsel’s petition was facially untimely and that he failed to plead or prove any exception to the PCRA’s timeliness requirements. See Helsel, 195 A.3d 997 (unpublished memorandum at *6-8); see also 42 Pa.C.S.A. § 9545(b)(1)(i)- (iii).

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(holding that “[t]he law does not require the performance of a futile acts”).

We therefore grant counsel’s motion to withdraw, and affirm the order

dismissing Helsel’s third PCRA petition.

Motion to withdraw as counsel granted. Order affirmed.

President Judge Panella joins in this memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/16/2022

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