Com. v. Wallace, S.

Opinion

J-S03042-21

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : STEPHEN JOSEPH WALLACE, : : Appellant : No. 737 WDA 2020

Appeal from the PCRA Order Entered June 30, 2020 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011757-2002

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : STEPHEN JOSEPH WALLACE, : : Appellant : No. 738 WDA 2020

Appeal from the PCRA Order Entered June 30, 2020 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011756-2002

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : STEPHEN JOSEPH WALLACE, : : Appellant : No. 739 WDA 2020

Appeal from the PCRA Order Entered June 30, 2020 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003961-2003 BEFORE: DUBOW, J., MURRAY, J. and STRASSBURGER, J.*

JUDGMENT ORDER BY DUBOW, J.: FILED: August 31, 2021

Appellant, Stephen Joseph Wallace, appeals from the June 30, 2020

Order dismissing his Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. § 9541–9546.1 With this appeal, Appellant’s counsel has

filed a Motion to Withdraw as Counsel and an Anders2 Brief. Before counsel

may withdraw under the PCRA, we must determine if counsel has complied

with the technical requirements of Turner and Finley.

Pursuant to Turner/Finley, independent review of the record by

competent counsel is required before withdrawal on collateral appeal is

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

Counsel is then required to submit a no-merit letter (1) detailing the nature

and extent of his or her review; (2) listing each issue the petitioner wished to

have reviewed; and (3) providing an explanation of why the petitioner’s issues

were meritless. Id. The court then conducts its own independent review of

1 On August 11, 2020, this Court consolidated sua sponte the above-numbered

appeals.

2 Anders v. California, 386 U.S. 738 (1967). Although counsel has filed an Anders Brief, the proper mechanism when seeking to withdraw in PCRA proceedings is a Turner/Finley no-merit letter. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, because an Anders brief provides greater protection to a criminal appellant, we may accept an Anders brief in lieu of a Turner/Finley no-merit letter. Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

* Retired Senior Judge assigned to the Superior Court. J-S03042-21

the record to determine if the petition is meritless. Id. “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.” Commonwealth v. Wrecks, 931

A.2d 717, 721 (Pa. Super. 2007) (citation omitted).

Our review of the record indicates that counsel did not serve a copy of

the Anders Brief and Motion to Withdraw on Appellant. Instead, the proofs

of service attached to counsel’s filings indicate service on the Commonwealth

only. In addition, no proof of service was included with the no-merit letter

appended to the Motion to Withdraw. Thus, counsel has not complied with

the Turner/Finley notice requirements.

Accordingly, we deny counsel’s Motion to Withdraw and direct counsel,

within ten days of the filing date of this decision, to send a copy of the no-

merit Letter, Motion to Withdraw, and Anders brief to Appellant with amended

certificates demonstrating proper service on Appellant and the

Commonwealth.

Motion to Withdraw as Counsel denied. Panel jurisdiction retained.

Judge Murray joins the Judgment Order.

Judge Strassburger did not participate in the consideration or decision

of this case.