Com. v. Oliver, K.

• Court: Superior Court of Pennsylvania
• Decided: December 10, 2019
• Docket: 3646 EDA 2018
• Status: Unpublished

Opinion

J-S63026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAREEM OLIVER : : Appellant : No. 3646 EDA 2018

Appeal from the PCRA Order Entered November 20, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1003111-2004

BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.: FILED DECEMBER 10, 2019

Kareem Oliver (Appellant) appeals pro se from the order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. For the following reasons, we remand with instructions.

The facts underlying Appellant’s convictions are not necessary to our

disposition. Following a bench trial, Appellant was found guilty of, inter alia,

third-degree murder1 and sentenced to an aggregate term of 30 to 60 years

of imprisonment. On November 29, 2010, this Court affirmed Appellant’s

judgment of sentence. Commonwealth v. Oliver, 1460 EDA 2009 (Pa.

Super. 2010) (unpublished memorandum). On April 11, 2011, Appellant filed

a pro se PCRA petition requesting the reinstatement of his right to file a nunc

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2502(c). J-S63026-19

pro tunc petition for allowance of appeal with the Pennsylvania Supreme

Court. The PCRA court granted Appellant’s request, and on July 17, 2015, our

Supreme Court denied his petition. Commonwealth v. Oliver, 93 EAL 2015

(Pa. July 17, 2015). Accordingly, Appellant’s judgment of sentence became

final on October 15, 2015. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct.R.

13.

On August 31, 2015, Appellant filed a second timely pro se PCRA

petition. Counsel was appointed, but subsequently filed a Turner/Finley2 no-

merit letter. Although there is no order in the record indicating that Counsel

was permitted to withdraw, substitute counsel, Attorney George Henry

Newman, Esq., filed an amended PCRA petition on Appellant’s behalf on

October 10, 2017. After several continuances, the PCRA court on June 13,

2018 issued notice of its intent to dismiss Appellant’s petition pursuant to Rule

907 of the Pennsylvania Rules of Criminal Procedure; the PCRA court formally

dismissed Appellant’s petition on November 20, 2018. On December 13,

2018, Appellant filed a pro se notice of appeal with this Court. Thereafter, on

January 15, 2019, Attorney Newman filed with the PCRA court a motion to

withdraw as counsel, which the court granted the same day.

Before turning to the merits, we must address Appellant’s pro se status

because the PCRA court, by order dated January 15, 2019, granted Attorney

Newman’s request to withdraw while this appeal was pending. ____________________________________________

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Pursuant to Pa.R.A.P. 1701, “[e]xcept as otherwise prescribed by these

rules, after an appeal is taken . . . the trial court or other government unit

may no longer proceed further in the matter.” See Commonwealth v.

Bishop, 829 A.2d 1170 (Pa. Super. 2003) (holding the PCRA court lacked

jurisdiction to entertain issues concerning bail when the Commonwealth’s

appeal, taken from this Court’s grant of a new trial for appellant, was pending

before our Supreme Court). Thus, once the notice of appeal was filed, the

PCRA court lacked jurisdiction to rule on counsel’s motion. If Attorney

Newman wished to withdraw, his motion should have been filed with this

Court.

Because the PCRA court lacked jurisdiction to entertain counsel’s

motion, the court’s January 15, 2019 order permitting Attorney Newman to

withdraw is a legal nullity, and we therefore decline to address the appeal

further because Mr. Newman is still Appellant’s lawyer, and Appellant is not

truly pro se. We direct the prothonotary to furnish a copy of this memorandum

to the PCRA court, the Commonwealth, Appellant and Attorney Newman; the

prothonotary shall also set a new briefing schedule, in accordance with which

Appellant’s counsel may file either an advocate’s brief or a petition to withdraw

and Turner/Finley no-merit letter with this Court addressing the issues

Appellant wishes to raise on appeal.

Case remanded with instructions. Panel Jurisdiction retained.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/10/19

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