Com. v. Saunders, A.

• Court: Superior Court of Pennsylvania
• Decided: April 2, 2025
• Docket: 357 EDA 2024
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTONIO SAUNDERS : : Appellant : No. 357 EDA 2024

Appeal from the Order Entered December 11, 2023 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000538-2019

BEFORE: MURRAY, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED APRIL 2, 2025

Antonio Saunders (“Saunders”) appeals from the order denying, after a

hearing, his first counseled petition filed pursuant to the Post Conviction Relief

Act (PCRA).1 In addition, Saunders’s court-appointed appellate counsel

(“Appellate Counsel”) has filed a motion to withdraw as counsel and a

Turner/Finley “brief.”2 For the reasons discussed below, we grant counsel’s

petition to withdraw but vacate the denial of PCRA relief and remand for

further proceedings.

Because of our disposition in this matter, we do not discuss the

underlying facts except to note a jury convicted Saunders in 2019 of seven

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1 See 42 Pa.C.S.A. §§ 9541-9546.

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). J-S41034-24

counts of forgery, and one count each of identity theft and attempted theft by

unlawful taking. The trial court sentenced Saunders to fifty-two to one-

hundred-and-four months in prison.

Saunders appealed and, in January 2021, this Court affirmed the

judgment of sentence. See Commonwealth v. Saunders, 248 A.3d 459

(Pa. Super. 2021) (unpublished memorandum at *1). Saunders did not seek

leave to appeal to the Pennsylvania Supreme Court.

In January 2022, Saunders filed a timely pro se PCRA petition. The trial

court appointed counsel (“First PCRA Counsel”) who filed amended and second

amended PCRA petitions. In June 2023, the PCRA court held a hearing on

Saunders’s PCRA petition. At the hearing, for reasons not apparent from the

record, a different attorney represented Saunders (“Second PCRA Counsel”).

On December 8, 2023, the PCRA dismissed the PCRA petition. See Order and

Opinion, 12/11/23, at 1.

Although still represented by Second PCRA Counsel, Saunders filed a

pro se notice of appeal on January 10, 2024. On February 12, 2024, the PCRA

court directed Saunders to file a Rule 1925(b) statement. While the proof of

service for the order indicates service on Saunders, there is no indication the

Court served a copy on Second PCRA Counsel. See Order, 2/12/24, at 1

(unnumbered). On February 22, 2024, Second PCRA Counsel filed a motion

seeking to withdraw his appearance and have the PCRA court appoint new

counsel. On March 4, 2024, four days after the expiration of time to file the

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Rule 1925(b) statement, the PCRA court permitted Second PCRA Counsel’s to

withdraw and appointed Appellate Counsel. 3 The order did not allow Appellate

Counsel to file a nunc pro tunc Rule 1925(b) statement. Appellate Counsel

filed a notice of intent to file a Turner/Finley letter. See Pa.R.A.P.

1925(c)(4). The PCRA court subsequently issued an opinion asking this Court

to dismiss Saunders’s appeal based for failure to comply with Pa.R.A.P.

1925(b). See PCRA Court Opinion, 4/16/24, at 1 (unnumbered).

Appellate Counsel has filed an application to withdraw as counsel and a

Turner/Finley brief. Saunders filed a response alleging the ineffectiveness

of both Second PCRA and Appellate Counsel.

We first determine whether Appellate Counsel has satisfied the

requirements to be permitted to withdraw from representation. Pursuant to

Turner/Finley, an “[i]ndependent review of the record by competent counsel

is required before withdrawal [on collateral review] is permitted.”

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009) (explaining how

counsel establishes having conducted independent review). In addition to

independent review, counsel petitioning to withdraw must send the petitioner

a copy of the “no merit” letter or brief; a copy of the petition to withdraw; and

a statement advising the petitioner of his right to proceed pro se or retain

3 Appellate counsel is Saunders’s ninth attorney; Saunders represented himself at trial.

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counsel. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

If counsel does not meet these technical requirements, we will deny counsel’s

request to withdraw and remand for counsel to file a proper Turner/Finley

letter or an advocate’s brief. See id. If counsel satisfies the technical

requirements this Court will then conduct its own review of the merits, and if

we agree the case is meritless, we will allow counsel to withdraw and deny

relief. Id.

Here, we are faced with a conundrum. Appellate Counsel complied with

the technical requirements of Turner/Finley. However, Appellate Counsel

filed a brief in which he acknowledges “Pa.R.A.P. 1925(c)(3) warrants remand

to the [PCRA] court” to allow Saunders to file a Rule 1925(b) statement nunc

pro tunc. See Turner/Finley Brief at 14; see also id. at 15. Appellate

Counsel nevertheless asks us to ignore Saunders’s entitlement to a remand to

file a Rule 1925(b) statement nunc pro tunc, citing Saunders’s repeated

inability to cooperate with counsel, his filing of a pro se notice of appeal, and

his “incessant,” “inaccurate, and/or “improper” pro se filings throughout the

course of the underlying case. Id. Counsel further argues in detail that

Saunders’s sole PCRA claim, concerning the alleged ineffectiveness of his first

attorney in connection with his arraignment and/or preliminary hearing, lacks

merit. See id. at 22-36.

The Commonwealth agrees with Appellate Counsel, and argues

Saunders is not entitled to PCRA relief, citing this Court’s memorandum

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decision in Commonwealth v. Wolfe, 2019 WL 2437941 at *3 (Pa. Super.

2019),4 for the proposition “where there exist[] fatal deficiencies . . . a

properly filed 1925 Statement cannot correct,” this Court may reach the

merits of the claim and ignore an appellant’s failure to file a Rule 1925(b)

statement. Commonwealth’s Brief at 9; see id. at 8-11.

Saunders filed a response to Appellate Counsel’s application to withdraw

in which he argues the ineffectiveness of both Second PCRA Counsel and

Appellate Counsel.5 See Saunders’s Response, 6/24/24, at 2-3

(unnumbered).

We are not unsympathetic to the position advocated by both Appellate

Counsel and the Commonwealth. Nonetheless, there is no proper legal basis

for this Court to ignore what was either (1) per se ineffective assistance of

Second PCRA Counsel for failing to file a Rule 1925(b) statement and/or (2) a

breakdown in court operations resulting from the PCRA court’s failure to serve

4 Because Wolfe was filed in June 2019, it may be cited for its persuasive value. See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision of Superior Court filed after May 1, 2019, may be cited for persuasive value). 5 See Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (“[A] PCRA

petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal.”). Bradley does not automatically guarantee a remand to the PCRA court but requires one where there are material facts at issue regarding counsel’s performance and relief is not plainly unavailable as a matter of law. See id. at 402.

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a copy of the Rule 1925 order on Second PCRA Counsel, 6 and the court’s failure

to allow the filing of a nunc pro tunc Rule 1925(b) statement when appointing

Appellate Counsel after the period had run.7 A disposition of Saunders’s claims

based on the “failure” to file a Rule 1925(b) statement is not supportable

under those facts.

Thus, because Appellate Counsel has filed a Turner/Finley brief

asserting a position not supported by law or facts as the basis to dismiss

Saunders’s appeal, and did not file a motion seeking a remand of this matter

for the filing of a nunc pro tunc Rule 1925(b) statement, we cannot find

Appellate Counsel has complied with the dictates of Turner/Finley.

Additionally, because Saunders now claims Appellate Counsel is ineffective,

we are constrained to grant Appellate Counsel’s withdrawal application.

6 In his pro se notice of appeal, dated four days prior to the expiration of the

appeal period, Saunders claims he contacted Second PCRA Counsel and asked him to file an appeal. Saunders maintains he only filed the notice of appeal pro se to preserve his right to appeal. See Notice of Appeal, filed 1/10/24, at 1 (unnumbered). The certificate of service attached to the notice indicates Saunders sent a copy of the notice of appeal to Second PCRA Counsel. See id. at Certificate of Service.

7 We do not find Wolfe has persuasive value. Wolfe involved a late-filed Rule 1925(b) statement, not the absence of any statement. See Wolfe, 2019 WL 2437941, at *2. More importantly, we do not find persuasive the Wolfe majority’s assertion we may ignore counsel’s failure to file a Rule 1925(b) statement. Instead, we agree with the dissenting Judge in Wolfe that the failure to file a timely Rule 1925(b) statement constitutes ineffectiveness of counsel per se. See id. at *4 (Strassburger, J. dissenting, citing Commonwealth v. Burton, 973 A.2d 428, 432-33 (Pa. Super. 2009) (en banc)).

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Finally, because we are unable to determine from the record whether

Saunders’s failure to file a Rule 1925(b) statement resulted from the

ineffectiveness of Second PCRA Counsel or a breakdown in the operations of

the PCRA court, we are constrained to vacate the order denying PCRA relief

and remand for further proceedings.

In remanding for further proceedings, we note that an indigent, first-

time PCRA petitioner is entitled to counsel throughout the litigation of his PCRA

petition, including on appeal. See Commonwealth v. White, 871 A.2d

1291, 1292-93 (Pa. Super. 2005). An indigent PCRA petitioner may, however,

forfeit the right to counsel if the petitioner engages in “extremely serious

misconduct or extremely dilatory conduct.” Commonwealth v. Staton, 120

A.3d 277, 282, 286 (Pa. 2015). The record here reflects Saunders has

repeatedly filed pro se motions, while represented by counsel, which unduly

delayed trial and PCRA proceedings, and otherwise failed to cooperate with

his nine prior appointed attorneys. Regarding the instant claims, Saunders

has refused to accept the analysis of two separate attorneys that the claims

concerning defects relating to his preliminary hearing are not cognizable under

the PCRA. Therefore, on remand, the PCRA court shall determine whether

Saunders has forfeited his right to counsel.8 Alternatively, if the PCRA court

8 We note, in a recent decision, Commonwealth v. Cook, 325 A.3d 1275,

1279-81 (Pa. Super. 2024), this Court reversed a finding a first PCRA petitioner had forfeited his right to counsel on a first PCRA petition, despite (Footnote Continued Next Page)

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determines Saunders is entitled to counsel, but if Saunders wishes to proceed

pro se, the PCRA court shall conduct a colloquy of Saunders, pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine whether

such request is knowing, intelligent, and voluntary. If the PCRA court

determines Saunders satisfies the appropriate standard, the PCRA court shall

enter an order permitting Saunders to proceed pro se.

Additionally, the PCRA court shall allow the filing of a third amended

PCRA petition which permits Saunders to raise both the claim of ineffective

assistance of pre-trial counsel that resulted in Appellate Counsel’s

Turner/Finley letter, and his current, layered claims of ineffective assistance

of Second PCRA Counsel and Appellate Counsel. We leave to the PCRA court’s

discretion the extent and manner of the additional evidence to be developed

concerning the new claims. Thereafter, the PCRA court shall enter a new final

order disposing of all claims Saunders has raised in connection with the instant

PCRA petition.

ignoring the advice of qualified attorneys and filing multiple pro se petitions while represented by counsel, because Cook had only been represented by one attorney on the PCRA petition, that attorney agreed there were some issues of arguable merit, and because Cook’s conduct did not delay his trial. Here, Saunders’s extremely dilatory conduct in filing pro se motions while represented by counsel did delay his trial, at which he ultimately represented himself, and he has been represented and given the same advice, that there are no issues of arguable merit with respect to his PCRA petition, by several attorneys.

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Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judge Murray joins this memorandum.

Judge King concurs in the result.

Date: 4/2/2025

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