NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
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JORDAN SCOTT KEYS :
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Appellant : No. 1036 MDA 2025
Appeal from the PCRA Order Entered July 1, 2025 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004778-2022
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J. MEMORANDUM BY BOWES, J.: FILED: AUGUST 19, 2026 Jordan Scott Keys appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). His attorney, Kristen L. Weisenberger, Esquire, has filed a petition to withdraw and Anders brief.1 Appellant has filed a response. Upon review, we grant counsel’s petition and affirm the PCRA court’s order.
We glean the following from the record. On May 7, 2022, the Lancaster City Bureau of Police Selective Enforcement Unit executed a search at
Appellant’s apartment as part of a drug investigation. In Appellant’s bedroom,
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1 Although Attorney Weisenberger asks to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), the appropriate filing in a PCRA appeal is a no-merit brief in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Nevertheless, we accept counsel’s Anders brief because a filing that complies with the mandates of Anders “provides greater protection to the defendant[.]” Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004) (cleaned up).
the officers discovered a brown AR-15 style rifle with no make, model, or serial number, and a “Wolf” brand silver and black inline-style black powder rifle. While searching the rest of the apartment, the police recovered drug paraphernalia and several items indicative of manufacturing firearms, including empty containers of various gun parts and sixteen polymer jigs in the design of a handgun. At the time, Appellant was prohibited from possessing or manufacturing firearms due to his prior criminal convictions.
Based on the foregoing, Appellant was charged with three counts of 18 Pa.C.S. § 6105, persons not to possess, use, manufacture, control, sell, or transfer a firearm, and one count of possession of drug paraphernalia. Relevant to Appellant’s PCRA claims, the allegations in the information for the first two counts were identical, with each pertaining to the possession of a firearm and identifying both the AR-style rifle and the inline-style rifle. The third count concerned Appellant’s purported manufacturing of firearms and referenced the multiplicity of equipment and tools in his possession to
accomplish that task.2
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2 Specifically, the first two counts stated that Appellant “did possess a coyote
brown colored AR type rifle with no make, model, or serial number and a Wolf brand silver and black ‘Inline’ style black powder rifle chambered in .50 caliber.” Information, 12/9/22. The third count, meanwhile, detailed that he possessed:
hand tools, presses, drills, empty containers that once contained firearm parts, containers and loading implements for handgun style weapons and magazines, moldings of handgun style weapons to drill/mill, lower receiver parts to AR style rifle and (Footnote Continued Next Page)
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On November 1, 2023, Appellant, represented by Cory Miller, Esquire, pled guilty to two counts of persons not to possess a firearm and one count of possession of paraphernalia in exchange for the Commonwealth seeking a nolle prossequi on the attempt charge. There was no agreement as to sentence. Appellant waived a pre-sentence investigation (“PSI”) report and proceeded immediately to sentencing. In light of the seriousness of the offenses, the Commonwealth asked the court to impose consecutive sentences. Arguing that one firearm was for hunting and the other was mounted on the wall and never fired, Attorney Miller sought concurrent sentences. Appellant accepted responsibility in his allocution. The court imposed consecutive sentences of four to ten years of incarceration.
Appellant filed neither a post-sentence motion nor a direct appeal. On August 26, 2024, he timely filed pro se the instant PCRA petition, his first. Therein, he indicated his intent to challenge, inter alia, the effectiveness of Attorney Miller’s representation, the amount of time credit he received, and the legality of his sentence based on double jeopardy grounds. He also requested the appointment of new counsel. The PCRA court appointed Patricia Spotts, Esquire, who filed an amended petition pleading a single claim of ineffective assistance of counsel. Specifically, that Attorney Miller should not
have advised Appellant to plead guilty to the two firearms offenses because
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other items that, in unison, are used to manufacture handguns and AR-15 style rifles.
Id.
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they were “based on the same criminal conduct in violation of the double jeopardy clause of the United States and Pennsylvania Constitutions.” Amended PCRA Petition, 4/30/25, at ¶ 17.
On June 6, 2025, the PCRA court issued notice of its intent to dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.3 The court explained that “[w]hile it is accurate that the criminal information lists the same allegations for the mentioned counts, this in no way prejudiced [Appellant] when he entered a non-negotiated guilty plea.” Rule 907 Notice, 6/6/25, at 7 (pagination supplied). It then detailed that, at the plea hearing, Appellant acknowledged the factual basis for his plea and the statements of the Commonwealth, Attorney Miller, and Appellant all confirmed the understanding that Appellant was charged with two firearms offenses because he was found to possess two firearms. Thus, the court held as follows:
Based on [Attorney Miller’s] representations at the plea and sentencing hearing, [Appellant] was not only aware that there were two guns found at his residence, but he also was taking responsibility for both firearms. Trial counsel requested the two counts run concurrent; however, th[e trial] court, within its discretion to do so, ran the charges consecutively to one another.
The error in the criminal information, based on the plea and sentencing hearing, did in no way mislead, prejudice, or surprise
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3 Appellant filed a pro se response arguing the merits of this claim.Since he was still represented by Attorney Spotts and hybrid representation is not permitted, that filing was a legal nullity. See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016) (explaining that, generally speaking, “pro se motions have no legal effect and, therefore, are legal nullities. When a counseled defendant files a pro se document, it is noted on the docket and forwarded to counsel pursuant to Pa.R.Crim.P. 576(A)(4), but no further action is to be taken” (cleaned up)).
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[Appellant]; nor did it impair any of [his] rights. Therefore, it would have been fruitless for trial counsel to forbid [Appellant]
from pleading guilty based on that minute error alone.
Id. at 8 (pagination supplied, cleaned up). On July 1, 2025, the PCRA court dismissed the petition.
The initial stages of this appeal were complicated by that dismissal order because, although Attorney Spotts had not sought leave to withdraw, it advised Appellant that if he wished to pursue an appeal, he needed to do so pro se or with the assistance of new counsel. Notwithstanding that language, Attorney Spotts timely filed the instant notice of appeal and was ordered by the PCRA court to file a concise statement pursuant to Pa.R.A.P. 1925(b).4 Heeding the directive of the dismissal order, Appellant also filed a pro se notice of appeal, which this Court ultimately dismissed as duplicative. Despite Attorney Spotts actively representing Appellant on this appeal, Appellant submitted a pro se concise statement to the PCRA court, which included a layered ineffectiveness claim against Attorneys Spotts and Miller. Specifically, he alleged their inadequate representation “resulted in [his] accepting an illegal sentence and being denied fair access to present meaningful claims for PCRA and [a]ppellate review[.]” Pro Se Concise Statement, 10/9/25.
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4 In contravention of the mandates of Rule 1925(b), this order did not direct
that the statement be filed of record, include the address to which the statement could be mailed, or advise Appellant that any issue not included shall be waived. See Pa.R.A.P. 1925(b)(ii), (iii), (iv). It also improperly directed the Commonwealth to submit an answer even though Pa.R.A.P. 1925(b)(4)(iii) expressly states that “[t]he judge shall not require any party to file a brief, memorandum of law, or response as part of or in conjunction with the Statement.”
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At the direction of this Court, the PCRA court held a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). While that transcript was not included in the certified record, the record reveals that the PCRA court permitted Attorney Spotts to withdraw, appointed Attorney Weisenberger, and issued a new Rule 1925(b) order.5 Attorney Weisenberger filed notice of her intent to submit an Anders brief pursuant to Rule 1925(c)(4). The PCRA court therefore declined to author a Rule 1925(a) opinion.
As noted, Attorney Weisenberger has filed an Anders brief and petition to withdraw in this Court. The Commonwealth declined to file a brief, but Appellant submitted a pro se response. Before reaching the substance of what Appellant seeks to argue on appeal, we must address counsel’s petition to withdraw. In that regard, we are guided by the following principles:
Similar to the Anders situation, Turner/Finley counsel must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley, the court will not reach the merits of the underlying claims but, rather, will merely deny counsel’s request
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5 While this order was otherwise compliant with Rule 1925(b), it kept the provision directing the Commonwealth to file a response.
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to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit letter that do satisfy the technical demands of Turner/Finley, the court—[PCRA] court or this Court—must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny counsel’s request and grant relief, or at least instruct counsel to file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (cleaned up). Our review confirms that Attorney Weisenberger has substantially complied with these requirements.6 Accordingly, we turn to the merits of this appeal.
Attorney Weisenberger presents a single issue for our review: “Whether the trial court erred in dismissing Appellant’s PCRA without a hearing where Appellant presented evidence of ineffective assistance of counsel where trial counsel allowed him to plead and be sentenced on identical facts at counts one and two.” Anders brief at 4 (unnecessary articles omitted).
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6 As part of our review, we recognize that Attorney Weisenberger has not addressed two claims that Appellant wishes to raise. See Wrecks, 931 A.2d at 721. Nonetheless, we decline to reject her Anders brief for non-compliance with this aspect of Turner/Finley. As will be explained in detail infra, the first issue does not request any relief and PCRA counsel plainly waived the second issue before Attorney Weisenberger was appointed, and therefore she cannot be ineffective for failing to raise it on appeal. In the future, however, we remind counsel that pursuant to Turner/Finley, she must address the merits of all claims a petitioner seeks to raise, not just those that present ordinary legal issues and are properly preserved.
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In addition to arguing this issue, Appellant raises two more claims in his responsive brief: (1) the PCRA court erred in accepting his pro se Rule 1925(b) statement when he was represented by Attorney Spotts; and (2) Attorney Miller rendered ineffective assistance by failing to ensure that he received his proper time credit. See Appellant’s brief at 2-3.
Our consideration of appeals from orders denying PCRA relief is “limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error.” Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019) (cleaned up). “However, we apply a de novo standard of review to the PCRA court’s legal conclusions.” Id. (cleaned up). Finally, “a PCRA court has discretion to dismiss a PCRA petition without a hearing if the court is satisfied that there are no genuine issues concerning any material fact; that the defendant is not entitled to post- conviction collateral relief; and that no legitimate purpose would be served by further proceedings.” Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (cleaned up).
We begin with the issue raised by Attorney Weisenberger in her Anders brief. This Court has explained that “allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea.” Commonwealth v. Kapellusch, 323 A.3d 837, 848 (Pa.Super. 2024) (cleaned up). We reiterate:
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To establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.
Sandusky, 203 A.3d at 1043 (cleaned up).
Crucially, “where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” Kapellusch, 323 A.3d at 848 (cleaned up). Regarding the specific claim raised in Appellant’s amended PCRA petition, “the federal double jeopardy clause offers several protections. Chief among those protections is the clause’s safeguard against multiple punishment[s] for the same offense at one trial.” Commonwealth v. Hill, 238 A.3d 399, 409 (Pa. 2020) (cleaned up).
Appellant was convicted of two counts of persons not to possess a firearm, which provides in pertinent part that “[a] person who has been convicted of an offense enumerated in subsection (b) . . . shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.” 18 Pa.C.S. § 6105(a)(1). We have held that “the Legislature’s use of the indefinite article ‘a’ in the definition of the proscribed conduct makes it clear a person who is prohibited from possessing a firearm under [§] 6105 violates
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[§] 6105 for each firearm possessed.” Commonwealth v. Jones, 2 A.3d 650, 654 (Pa.Super. 2010) (cleaned up). Thus, double jeopardy does not bar a defendant from being convicted and sentenced for each firearm possessed in violation of § 6105. Id. at 655.
Upon review, we conclude that Appellant’s sentence does not run afoul of double jeopardy. Indeed, the plea transcript leaves no doubt that Appellant was convicted and sentenced for each firearm he possessed. To wit, Appellant agreed to the Commonwealth’s recitation of the facts, which included that he “did control a .50 caliber, a regular AR-style rifle, as well as possessing multiple 80 Percent Lower kits and ammunition.” N.T. Plea Hearing, 11/1/23, at 4.
Attorney Miller continually relayed to the court that there were two firearms recovered from Appellant’s bedroom and that Appellant acknowledged possessing both firearms:
[ATTORNEY MILLER]: He had two guns, Your Honor, and he’s accepting responsibility to those. One of them is an Inline hunting rifle that you have to muzzle load and put the cap in and shoot one at a time. He was an outdoors man, he was a hunter, and he’s not allowed to have them and we’re not making excuses.
THE COURT: What was the other one?
[ATTORNEY MILLER]: It was an AR that had never been fired. It was sitting on the wall.
....
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[A]t the time they went into the house, that’s what they found, two guns.
....
Ultimately, at the end of the day, Your Honor, we’re asking you to run an AR that was bolted on the wall and an Inline muzzle loader used for hunting concurrent.
....
Again, I’m asking the court to take a look at the circumstances here. We have two firearms. I’m hoping the court is not going to run those consecutive.
Id. at 6-7, 9 (unnecessary capitalization omitted). Finally, Appellant himself told the court that he possessed two firearms:
I am taking responsibility for having those two firearms. The Inline I bought myself. At the time I bought it I was not aware I was not able to possess it. I am aware of that now. The AR I have no excuse for. I unlawfully possessed that. That’s the worst mistake of my life.
Id. at 9.
The foregoing illustrates that Appellant was aware from the criminal information that he was charged with two persons not to possess offenses for having two firearms, and he pled guilty to one count of that crime for each firearm he possessed. The fact that both guns were listed in both descriptions in the criminal information does not undermine that. As detailed hereinabove, the possession of each weapon constituted a separate criminal act for which Appellant could be punished. See Jones, 2 A.3d at 655 (“The act of possessing each firearm constituted a separate act of possession for purposes
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of [§] 6105, each subjecting Jones to separate prosecutions and separate sentences. As such there is no issue of merger of sentences or double jeopardy.” (cleaned up)).
Therefore, we agree with the PCRA court that the underlying claim lacks merit and Appellant cannot sustain his double jeopardy ineffectiveness claim. Accordingly, we discern no error in the court’s decision to dismiss this claim without a hearing, and we agree with Attorney Weisenberger that pursuing the claim on appeal would be frivolous because it has no basis in law or fact.
We now examine the issues raised by Appellant in his pro se response.
First, he argues that the PCRA court erred when it accepted his pro se Rule 1925(b) concise statement when he was still represented by PCRA counsel. He does not request any relief, instead simply arguing that Attorney Spotts should have filed a concise statement as his attorney of record, and that the PCRA court “erroneously received and accepted” his concise statement, which he filed to avoid waiver. See Appellant’s brief at 6.
While Appellant certainly should not have been required to file a pro se concise statement in this case when he was represented by counsel, he has not demonstrated that he is entitled to any relief for the PCRA court’s misstep in this regard. Further, aside from being docketed, there is no indication that any court substantively relied upon the pro se statement. In any event, contrary to Appellant’s assertion that Attorney Spotts refused to file a statement, the certified record reveals that she had sought an extension to do so. More importantly, Appellant was appointed new counsel who reviewed the
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record and decided to submit a statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). Since Appellant has not requested any relief but instead has simply lodged a complaint, we need not address this issue any further.
Finally, Appellant contends that Attorney Miller was ineffective for not knowing how much time credit Appellant was due and thereby failing to ensure that he received proper credit pursuant to 42 Pa.C.S. § 9760.7 See Appellant’s brief at 9. Specifically, he claims that plea counsel neglected to specifically request credit for the five days Appellant was hospitalized between his initial arrest and transfer to prison. Id. at 9-10.
Time credit is governed by the Sentencing Code, which provides in pertinent part:
Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
42 Pa.C.S. § 9760(1).
We do not reach the question of whether Appellant’s time in the hospital, the details of which are not developed in the record, constituted custody for purposes of § 9760 because it is well-settled that to preserve issues raised in
an initial pro se PCRA petition, counsel must explicitly raise them in the
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7 He does not argue that his sentence is illegal because he did not receive credit for this time, and we therefore only look at this issue through the lens of counsel’s effectiveness in pursuing time credit.
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amended petition after being appointed. See Commonwealth v. Johnson, 179 A.3d 1153, 1157 (Pa.Super. 2018). If counsel does not raise and argue a claim in the amended petition, it is waived for appeal. Id. (“It is incumbent upon counsel to examine the merits of the pro se claims and determine whether those issues are worth pursuing in an amended petition. Thus, the pro se claims could not be merely incorporated, and, in turn, are waived on appeal.” (cleaned up)).
As noted above, Appellant asserted in his pro se PCRA petition that he intended to challenge plea counsel’s failure to ensure he received proper credit. See PCRA Petition, 8/26/24, at 4, 6. However, Attorney Spotts did not raise a claim that Attorney Miller was ineffective for failing to request specific credit time at sentencing in the amended PCRA petition. Moreover, despite filing pro se responses to the PCRA court’s Rule 907 notice and dismissal, Appellant did not raise a claim in accordance with Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), arguing that PCRA counsel was ineffective for failing to challenge Attorney’s Miller’s stewardship as to seeking time credit. While Appellant generally alleged, without elaboration, PCRA counsel’s purported ineffectiveness in his pro se concise statement, Attorney Weisenberger did not pursue that claim once she was appointed, and Appellant does not argue it in his response to her Anders brief. Stated simply, the underlying ineffectiveness claim about requesting time credit was not preserved in the PCRA court, and it is therefore waived on appeal. Accord Johnson, 179 A.3d at 1157 (holding certain issues from pro se PCRA petition
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were waived on appeal because PCRA counsel only incorporated them by reference in the amended petition instead of raising and developing them therein).
Based on the foregoing, we agree with the PCRA court that there is no merit to Appellant’s preserved PCRA complaints. Therefore, we grant counsel’s petition to withdraw and affirm the PCRA court’s order.
Petition of Kristen L. Weisenberger, Esquire to withdraw as counsel granted. Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 8/19/2026