Com. v. Warner, K.

• Court: Superior Court of Pennsylvania
• Decided: June 26, 2026
• Docket: 1600 EDA 2025
• Status: Unpublished
• Author: Stabile

Opinion

J-S17026-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KHALIL WARNER : : Appellant : No. 1600 EDA 2025

Appeal from the PCRA Order Entered April 1, 2025 In the Court of Common Pleas of Delaware County Criminal Division at No: CP-23-CR-0005486-2022

BEFORE: PANELLA, P.J.E., STABILE, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED JUNE 26, 2026

Appellant, Khalil Warner, filed this pro se appeal of an order dismissing

a petition (his first) filed pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546 (PCRA). In 2023, Appellant plead guilty to two counts

of aggravated assault, to which an aggregate prison term of seven to 20 years

was imposed. Appellant asserted in the instant PCRA petition that plea

counsel was ineffective and his plea was involuntary. Appellant was appointed

PCRA counsel, who filed a letter of “no merit” and an application to withdraw.

The Court of Common Pleas of Delaware County (PCRA court) dismissed the

petition, but prior to counsel’s withdrawal, Appellant filed a pro se notice of

appeal which was patently untimely. Finding that the untimeliness of

Appellant’s notice of appeal resulted from the effective deprivation of appellate

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* Retired Senior Judge assigned to the Superior Court. J-S17026-26

PCRA counsel and a breakdown in court operations, we will excuse the

procedural defect in the notice and remand the case for a determination as to

whether Appellant would prefer to avail himself of appellate counsel’s aid.

This case began on June 5, 2022, when police officers responded to the

scene of a shooting in Delaware County. During their investigation, police

recovered video surveillance footage of the incident showing that there were

two perpetrators who discharged their weapons at a group of boys exiting a

pizza parlor. The faces of both shooters were obscured. However, the identity

of one of the two shooters was discovered when police found several Youtube

videos posted at around the time of the incident. In those videos, an individual

can be seen wearing the same distinctive clothing (a black hoodie and black

pants with distinctive white lettering) worn by one of the two perpetrators.

Police identified the person as Appellant, and relied on the match to obtain a

search warrant of his home.

The home search yielded the same black pants seen in the Youtube

videos and surveillance footage of the shooting. Appellant was then charged

with several counts stemming from that incident, including two counts of

attempted murder and unlawful possession of a firearm. While in custody,

soon after the preliminary hearing, Appellant made a telephone call to his

girlfriend in which he uttered statements tantamount to admissions of guilt.

Appellant complained in the call that “you couldn’t even see my face in

the [surveillance] video[.]” N.T. Transcript, 3/21/2021, at 9-10. He also

informed his girlfriend that detectives knew the other shooter’s identity, and

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he arranged to have his girlfriend contact that person to tell him “what the

deal is.” Id., at 10. Unbeknownst to Appellant, his prison phone call was

recorded. The Commonwealth introduced the audio recording into evidence

at a pre-trial hearing. See id., at 17.

Appellant entered a counseled guilty plea on October 18, 2023, to two

counts of aggravated assault, and all the remaining counts were dismissed.

No post-sentence motions were filed; nor was a direct appeal. On July 11,

2024, Appellant filed, pro se, the instant petition for PCRA relief. He alleged

in the petition that plea counsel was legally ineffective and that his guilty plea

was involuntary. Appellant requested counsel, and PCRA counsel was

appointed.

Thereafter, on February 4, 2025, Appellant’s PCRA counsel filed an

application to withdraw from representation. Counsel also submitted a no-

merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). About one

week later, the PCRA court filed a Rule 907 notice of intent to dismiss

Appellant’s petition without a hearing. No response to the Rule 907 notice

was filed on Appellant’s behalf.

On April 1, 2025, the PCRA court entered an order dismissing Appellant’s

PCRA petition. The order advised Appellant that “appointed counsel shall be

permitted to withdraw from representation . . . upon expiration of the thirty

day period to appeal after entry of the final ORDER denying and dismissing

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the . . . pro se PCRA Petition.” Trial Court Order, 4/1/2025. However, a notice

of appeal was not filed within 30 days of that order’s entry.

On June 25, 2025, the Delaware County Clerk of Courts received a letter

from Appellant which was postmarked, June 23, 2025. Appellant sent the

letter, pro se, as an inquiry about the status of the notice of appeal he had

purportedly filed, again pro se, on April 26, 2025. The letter included a copy

of the notice of appeal, which was dated April 26, 2025. Crucially, Appellant

did not submit any proof that such a notice was in fact mailed to the clerk’s

office on that date. The Clerk of Court entered the pro se notice of appeal on

the case docket with a filing date of June 25, 2025.

The PCRA court entered an order on August 1, 2025, allowing PCRA

counsel to withdraw from representation. This Court, on August 27, 2025,

issued an order for Appellant to show cause why his appeal should not be

quashed as untimely having been filed over 30 days after the order on review

was entered. In response, Appellant echoed his earlier letter to the clerk’s

office, stating that his pro se notice of appeal was timely filed on April 25,

2025. The order to show cause was discharged, but it stated that the issue

of the appeal’s timeliness could later be considered by the merits panel.

In his pro se brief, Appellant now raises five issues concerning the

sufficiency of the evidence, the ineffectiveness of counsel, and the

voluntariness of his guilty plea. See Appellant’s Brief, at 2-3. The brief

contains no elaboration as to the timeliness of his notice of appeal or his right

to appellate PCRA counsel.

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The Commonwealth, conversely, argues that this appeal should either

be quashed due to the untimely filing of the notice of appeal, or that the order

on review should be affirmed for lack of merit in Appellant’s claims. See

Appellee’s Brief, at 8-9. Alternatively, the Commonwealth suggests that, if

this Court declines to dispose of the appeal on those grounds, the case should

be remanded for further proceedings because the record does not indicate

whether Appellant made an informed decision to proceed pro se instead of

availing himself of the right to PCRA counsel at the appellate stage of these

proceedings. See Appellee’s Brief, at 10-12. The Commonwealth notes that

“[n]o hearing was ever held pursuant to Commonwealth v. Grazier, 713

A.2d 81 (Pa. 1998), to determine if appellant was voluntarily waiving his right

to counsel.” Id., at 11.

“Our review of a post-conviction court's grant or denial of relief is limited

to determining whether the court's findings are supported by the record and

the court's order is otherwise free of legal error.” Commonwealth v. Yager,

685 A.2d 1000, 1003 (Pa. Super. 1996) (en banc).

“Time limitations on the taking of appeals are strictly construed and

cannot be extended as a matter of grace.” Commonwealth v. Perez, 799

A.2d 848, 851 (Pa. Super. 2002). Under Rule 903(a), “the notice of appeal

. . . shall be filed within 30 days after the entry of the order from which the

appeal is taken.” Pa.R.A.P. 903(a). A timely flied notice of appeal “triggers

the jurisdiction of the appellate court[.]” Commonwealth v. Wiliams, 106

A.3d 583, 587 (Pa. 2014).

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When a notice of appeal is not timely filed, the appeal must be quashed

unless it is determined that “an administrative breakdown in the court system

excuses the untimely filing[.]” Commonwealth v. Patterson, 940 A.2d 493,

498 (Pa. Super. 2007). One recognized type of such a breakdown is when a

court fails to properly advise a party of appellate rights. See id., at 498-99.

Accordingly, this Court may grant relief to a party whose untimely appeal has

resulted from a breakdown beyond the party’s control. See id.

Here, Appellant’s pro se notice of appeal is patently untimely. The PCRA

court’s order dismissing his petition was entered on April 1, 2025. The pro se

notice of appeal was not filed until over 30 days later, on June 25, 2025.

Appellant has claimed that his notice of appeal was filed earlier, within the 30-

day window, on April 26, 2025, but he has submitted no proof of such a filing.

See e.g. Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997)

(enumerating various examples of accepted forms of proof of a prisoner’s

timely mailing). Although the general rule is that an untimely appeal must be

quashed, we decline to do so here because it appears from the record that

Appellant proceeded pro se on appeal and filed a fatally defective notice

without ever being advised of his right to appellate PCRA counsel.

“Pennsylvania courts have recognized expressly that every post-

conviction litigant is entitled to at least one meaningful opportunity to have

. . . issues reviewed, at least in the context of an ineffectiveness claim.”

Commonwealth v. Karanicolas, 836 A.2d 940, 945 (Pa. Super. 2003)

(emphasis in original) (internal citations and quotations omitted). “This right

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to representation exists throughout the post-conviction proceedings, including

any appeal from disposition of the petition for post-conviction relief.”

Commonwealth v. White, 871 A.2d 1291, 1293-94 (Pa. Super. 2005)

(internal citations and quotations omitted); see also Pa.R.Crim.P. 904(F)(2);

Pa.R.Crim.P. 904(C).

In the present case, the PCRA court’s order dismissing Appellant’s

petition states that appointed counsel’s appearance could be withdrawn after

30 days from the date on which the order was entered. See PCRA Court

Order, 4/1/2025, at 1-2. The filing of an appeal was not entered on the case

docket within 30 days, and Appellant’s pro se notice of appeal was not

docketed until June 26, 2025. It was not until August 1, 2025, that appointed

PCRA counsel’s appearance was withdrawn by order, and Appellant has

proceeded pro se since that time.

Again, no Grazier hearing was ever held to advise Appellant of his

appellate rights, and to determine if Appellant wanted to waive his right to

appellate counsel. Further, prior PCRA counsel’s no-merit letter makes no

mention of Appellant’s right to counsel on appeal. It only states that, if the

PCRA court were to grant counsel’s application to withdraw, Appellant would

have to address the withdrawal to the PCRA Court either “on his own or

through a privately retained attorney.” PCRA Counsel’s No-Merit Letter,

2/4/2025, at 3. Further, neither the PCRA Court’s Rule 907 notice of intent to

dismiss Appellant’s PCRA petition, nor the order dismissing the PCRA petition,

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advised him of his right to appointed counsel at the appellate stage. See

PCRA Court 907 Notice, 2/5/2025, at 5; PCRA Court Order, 4/1/2025, at 1-2.

On these facts, we find that Appellant’s untimely filing of this appeal is

at least in part due to a breakdown in court operations and the deprivation of

the right to appellate counsel. Appellant was either insufficiently advised or

misadvised of his appellate rights, and the PCRA court’s order only

prospectively granted prior counsel’s request to withdrawal from

representation. These instructions by the PCRA court made it unclear whether

Appellant was still being represented by appointed counsel for appellate

purposes during the period for filing a notice of appeal.

In fact, a reasonable interpretation of the PCRA court’s order delaying

the withdrawal of PCRA counsel is that Appellant was not meaningfully

represented by an attorney for purposes of appeal during the 30-day filing

period. Appointed PCRA counsel already had filed a letter of no-merit and

sought to withdraw from the case. It would not have made sense for Appellant

to then assume that his soon-to-be withdrawn attorney would be filing a notice

of appeal on his behalf, as that would have been incompatible with the

attorney’s express position that there were no non-frivolous issues justifying

the pursuit of PCRA relief.

This case must therefore be remanded so that the PCRA court may fully

advise Appellant of his right to appellate PCRA counsel. If Appellant chooses

to avail himself of that right, newly appointed counsel may either advocate

the merits of Appellant’s PCRA claims on appeal or seek to withdraw upon a

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finding that there are “no non-frivolous issues justifying the pursuit of post-

conviction collateral relief.” Karanicolas, 836 A.2d at 947 (internal

quotations and citations omitted).

New PCRA appellate counsel, if appointed, shall have 30 days from the

date of appointment to file either a brief or a Turner/Finley no-merit letter

with this Court; the Commonwealth shall then have 30 days to file a

responsive brief if the Commonwealth so desires. In the event that Appellant

declines the appointment of appellate PCRA counsel, no further briefing will

be necessary.

Case remanded for further proceedings consistent with this

memorandum. Jurisdiction retained.

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