NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
DURAND DAMION LAWSON :
:
Appellant : No. 1565 WDA 2024
Appeal from the PCRA Order Entered June 20, 2023 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000070-2018
BEFORE: OLSON, J., STABILE, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: April 23, 2026
Appellant, Durand Damion Lawson, appeals pro se from the order
entered on June 20, 2023, dismissing his first petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review,
we are constrained to vacate the order and remand for the appointment of
new PCRA counsel and additional proceedings.
We previously summarized the facts and procedural history of this case
as follows:
On January 9, 2018, Officer Brian Lombardo of the New Castle Police department was on patrol when he determined that a passing Chevrolet Caprice, driven by Appellant, had an expired registration. When Officer Lombardo activated his lights and sirens to conduct a traffic stop, Appellant led him on a high-speed chase, reaching speeds in excess of 70 miles per hour in a residential zone with a 25 mile per hour speed limit. The car chase ended when Appellant crashed the car into the side of an apartment building. Appellant, dressed in a black jacket, yellow shirt, jeans,
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and Nike shoes, then fled from the vehicle. Dashcam video recorded the event from its inception to Appellant's flight.
Officer Lombardo watched Appellant run across a snowy field, observing Appellant slip and fall. Officer Randall Cook, who had responded to the radio alert of the chase, arrived and watched Appellant, whom he recognized from the radio description as the man wearing a yellow shirt, black jacket, and jeans, force his way into a nearby house. At the same time, Robert Sutton, a resident of the house, who had seen Appellant driving the Caprice about an hour and a half earlier, watched Appellant enter [the home] through the back door, yell[ed] “police!” and [ran] upstairs.
Officers Lombardo and Cook followed Appellant into the house and commanded everyone inside to leave. Four members of the household who were downstairs complied, but Appellant was not among them. The officers reiterated the command and, after they announced that a search dog was on its way, Appellant descended the stairs, saying that he had been asleep. He was breathing heavily, and wearing only wet, muddy jeans. The officers searched the house, where they found wet Nike shoes, as well as the black jacket and yellow shirt that they saw Appellant wearing during the foot chase. Appellant put the wet shoes on and wore them to the New Castle Police Station.
As this was happening, Officer Darcell Bouyer arrived at the accident scene within thirty seconds of the crash and saw a loaded High Point 9-millimeter pistol lying in plain view on the driver's side front seat of the Caprice. He photographed the pistol as he found it.
Commonwealth v. Lawson, 266 A.3d 638, at *1 (Pa. Super. 2021)
(non-precedential decision).
On January 9, 2018, the Commonwealth charged Appellant with persons
not to possess a firearm, firearms not to be carried without a license, and
fleeing or attempting to elude a police officer.1 On October 20, 2019, at the
conclusion of a three-day trial, the jury found Appellant guilty of the
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1 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), and 75 Pa.C.S.A. § 3733(a), respectively.
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aforementioned charges. Id. at *3. On January 10, 2020, the trial court
sentenced Appellant to an aggregate term of six to 12 years of incarceration.
Id. On October 15, 2021, we affirmed Appellant’s judgment of sentence. Id.
at *8. Our Supreme Court denied further review. Commonwealth v.
Lawson, 275 A.3d 485, 486 (Pa. 2022).
Thereafter, the procedural history of the case became slightly
convoluted. Appellant filed a timely pro se PCRA petition on December 21,
2022.2 On January 3, 2023, the PCRA court appointed Attorney Dennis
McCurdy to represent Appellant, but inadvertently failed to enter an order to
that effect.3 On March 6, 2023, the PCRA court permitted Attorney McCurdy
to withdraw. After permitting Attorney McCurdy to withdraw, the PCRA court
convened an evidentiary hearing on June 8, 2023, wherein Appellant appeared
pro se. See PCRA Court Opinion, 2/13/2025, at 10 (“The court held a hearing
on [Appellant’s] [p]etition on June 8, 2023, and the court issued an order and
[o]pinion on June 20, 2023, denying [Appellant’s PCRA] [p]etition.”). On June
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2 Our review of the certified record confirms that Appellant unintentionally filed a prior petition for this case at Docket No. 400 of 2017, a separate trial court docket at which Appellant is also a defendant.
3 For a more detailed discussion regarding the appointment of PCRA counsel, see n. 4, infra.
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20, 2023, the PCRA court dismissed Appellant’s petition. See id. Appellant
filed a timely, pro se notice of appeal on July 14, 2023.4
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4 Appellant’s notice of appeal was discovered during our review of a companion case, at trial court docket CP-37-CR-0000400-2017, which was docketed in our Court at 1434 WDA 2024. On November 12, 2024, Appellant filed an appeal in that companion case from the same June 20, 2023 order. Certified record review, however, confirmed that Appellant’s notice of appeal in this matter was never forwarded to this Court. Moreover, despite the fact that the current PCRA petition was Appellant’s first, there was no indication on the docket or in the certified record that counsel was appointed to represent Appellant herein. See Pa.R.Crim.P. 904(C) (“[W]hen an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on defendant’s first petition for post-conviction collateral relief.”). Accordingly, on February 25, 2025, this Court issued an order directing the PCRA court to clarify whether Appellant was entitled to counsel and, if so, to appoint counsel. On March 13, 2025, this Court received a response from the PCRA court indicating that Attorney Dennis McCurdy had been appointed, but that “Attorney McCurdy had been assigned to [the] separate case [at trial court docket number] 400 of 2017” and “was not ‘formally’ assigned to the case on record, through inadvertence.” PCRA Court Letter, 3/13/2025, at *1.
As such, the PCRA court “corrected this error by entering [an] order of court appointing Attorney McCurdy of record in this case.” Id. By order entered on March 11, 2025, the PCRA court appointed Attorney McCurdy and directed him to “take any action that counsel deem[ed] appropriate.” Order of Court, 3/11/2025, at *1. On April 10, 2025, Attorney McCurdy filed a motion to withdraw 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). In his Turner/Finley “no-merit letter” filed with the PCRA court, counsel set forth the following issues Appellant alleged on collateral review: “(1) [Appellant] alleges that the jury pool was tainted by the lack of Black jurors in the pool or seated in the jury[;] (2) [Appellant] alleges that counsel was ineffective for having him removed during the voir dire stage of seating the jury.” Turner/Finley Letter, 4/10/2025, at 3. On April 15, 2025, the PCRA court entered the following order:
[…H]aving been remanded by the Superior Court [] to clarify whether Appellant is entitled to counsel, and if so, to appoint (Footnote Continued Next Page)
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On appeal pro se, Appellant presents the following issues for our review:
1. Did the PCRA [c]ourt err where it determined that an evidentiary hearing was necessary but [allowed Appellant’s] attorney [to withdraw] prior to holding the hearing?
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counsel to represent [] Appellant, the [PCRA c]ourt has reviewed the record. The [PCRA c]ourt finds that [it] intended to appoint Dennis W. McCurdy, Esq., to two cases involving [Appellant], case No. 400 of 2017 and the within case, No. 70 of 2018; however, the order of appointment was only entered at case No. 400 of 2017. Nevertheless, Attorney McCurdy reviewed both cases and found both cases to be without merit and sought withdrawal pursuant to Turner/Finley. The parties proceeded at this case with [Appellant] proceeding pro se. Since Attorney McCurdy’s appointment was not filed of record, [the PCRA c]ourt, upon remand, appointed Attorney McCurdy formally for the record; whereupon Attorney McCurdy filed a separate petition to withdraw pursuant to Turner/Finley at this case number and has been granted leave to withdraw.
Order of Court, 4/15/2025, at *1. Accordingly, the PCRA court returned the case to this Court.
We confirmed the PCRA court’s recitation of this procedural history upon review of the certified record at both trial docket numbers. Moreover, in his pro se appellate brief, Appellant acknowledges that Attorney McCurdy was appointed to represent him on January 3, 2023 and that Attorney McCurdy was permitted to withdraw on March 6, 2023. Appellant’s Brief, at 12. Upon further review, the PCRA court held an evidentiary hearing on June 8, 2023, wherein Appellant proceeded pro se. See PCRA Court Opinion, 2/13/2025, at 10 (“The court held a hearing on [Appellant’s] [p]etition on June 8, 2023, and the court issued an order and [o]pinion on June 20, 2023, denying [Appellant’s PCRA] [p]etition.”); see also Appellant’s Brief at 12 (“The PCRA [c]ourt granted [Attorney] McCurdy’s [m]otion to [w]ithdraw, and then scheduled a hearing on [Appellant’s] PCRA petition … via video on June 8, 2023 [wherein Appellant] represented himself.”); see also Appellant’s Pro Se Motion for New PCRA Counsel, 3/7/2025, at ¶¶ 5-7 (claiming the PCRA court granted counsel’s motion to withdraw, but still held an evidentiary hearing where Appellant “was compelled to proceed pro se.”); see also id. at ¶ 8 (Appellant “is arguing that his due process rights were violated when the [PCRA c]ourt first allowed his PCRA counsel to withdraw and subsequently held a hearing where [Appellant] was forced to represent himself.”).
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2. Did the PCRA [c]ourt err in dismissing [Appellant’s] claim that [appointed] standby counsel[’s] interference at trial deprived Appellant of his right to self-representation and his right to counsel of his own choosing in violation of Faretta v. California, 422 U.S. 806 (1975) and McKaskle v. Wiggins, 465 U.S. 168 (1984)?
Appellant’s Pro Se Brief, at 7.
In his first issue, Appellant argues that “the PCRA court deprived him of
his right to counsel by allowing [Attorney] McCurdy to withdraw before the
PCRA hearing[.]” Id. at 20; see also id. at 22 (“Therefore, the PCRA [court]
erred in holding a hearing on [Appellant’s] first PCRA petition after allowing
Attorney McCurdy to withdraw.”). Appellant contends that Pennsylvania Rules
of Criminal Procedure 904 and 908 provide that an indigent defendant is
entitled to the appointment of counsel on his or her first PCRA petition and
throughout the post-conviction proceedings. Id. at 21-22 (citations omitted).
Appellant posits that by granting Attorney McCurdy’s petition to withdraw
based upon his Turner/Finley no-merit letter, but then requiring Appellant
to proceed at a hearing pro se, the PCRA court took inconsistent positions in
finding that the issues presented were devoid of merit, but then concluded
that there were issues of material fact which required an evidentiary hearing.
Id. at 21. Appellant maintains that, in granting an evidentiary hearing, the
PCRA court believed there may have been a factual basis that entitled
Appellant to relief. Id. at 22. As such, Appellant argues that the PCRA court’s
order “should be vacated and this case should be remanded for the
appointment of counsel and a new PCRA hearing.” Id. at 22. We agree.
This Court has stated:
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Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party.
Commonwealth v. Wiggins, 248 A.3d 1285, 1288 (Pa. Super. 2021)
(citation omitted).
Pursuant to Pennsylvania Rule of Criminal Procedure 904, an indigent
defendant is entitled to the appointment of counsel for a first PCRA petition.
See Pa.R.Crim.P. 904(C) (“[W]hen an unrepresented defendant satisfies the
judge that the defendant is unable to afford or otherwise procure counsel, the
judge shall appoint counsel to represent the defendant on the defendant's first
petition for post-conviction collateral relief.”). Generally, “the appointment of
counsel shall be effective throughout the post-conviction collateral
proceedings, including any appeal from disposition of the petition for
post-conviction collateral relief.” See Pa.R.Crim.P. 904(F)(2); see also
Pa.R.Crim.P. 904, Comment (“Consistent with Pennsylvania post-conviction
practice, it is intended that counsel be appointed in every case in which a
defendant has filed a petition for post-conviction collateral relief for the first
time and is unable to afford counsel or otherwise procure counsel. However,
the rule now limits appointment of counsel on second or subsequent petitions
so that counsel should be appointed only if the judge determines that an
evidentiary hearing is required. Of course, the judge has the discretion to
appoint counsel in any case when the interests of justice require it.”).
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“[T]here is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that no genuine
issues of material fact exist, then a hearing is not necessary.” Wiggins, 248
A.3d at 1290 (citation omitted. However, Pennsylvania Rule of Criminal
Procedure 908 provides that the PCRA judge “shall order a hearing” either
“whenever the Commonwealth files a motion to dismiss due to the defendant's
delay in filing the petition” or “when the petition for post-conviction relief or
the Commonwealth's answer, if any, raises material issues of fact.”
Pa.R.Crim.P. 908(A)(1)-(2). On the other hand, “the judge may deny a
hearing on a specific issue of fact when a full and fair evidentiary hearing upon
that issue was held at trial or at any proceeding before or after trial.”
Pa.R.Crim.P. 908(A)(2). When the PCRA court orders an evidentiary hearing
to be held on a PCRA petition, “the judge shall permit the defendant to appear
in person at the hearing and shall provide the defendant an opportunity
to have counsel.” Pa.R.Crim.P. 908(C) (emphasis added).
Here, the PCRA court determined that there were no issues of material
fact when it granted PCRA counsel’s motion to withdraw pursuant to
Turner/Finley. Yet after allowing PCRA counsel to withdraw, The PCRA court
scheduled an evidentiary hearing on Appellant’s PCRA petition. As
Pa.R.Crim.P. 908 provides, if an evidentiary hearing is convened, the PCRA
court shall provide the defendant with an opportunity to have counsel. Here,
the PCRA court convened an evidentiary hearing, presumably to address the
merits of Appellant’s claims. Appellant, however, was not afforded counsel
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at that evidentiary hearing. This constituted a violation of the plain terms of
Pa.R.Crim.P. 908(C). As such, we are constrained to vacate the PCRA order.
We remand for the appointment of new PCRA counsel to file either an amended
PCRA petition or Turner/Finley letter and motion to withdraw. Should the
PCRA court determine that there are no meritorious issues and that an
evidentiary hearing is not required, the PCRA court should follow Pa.R.Crim.P.
907, which allows the court to dismiss a petition upon notice and following the
passage of a period for response. Should the PCRA court determine that there
are potentially meritorious issues and that an evidentiary hearing is required,
Appellant is entitled to be represented by counsel. Finally, having determined
that Appellant is entitled to relief on his first appellate issue, we need not
address his second issue as presented.
Order vacated. Case remanded for the appointment of new PCRA
counsel and any additional proceedings. Jurisdiction relinquished.
DATE: 4/23/2026