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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

ERNESTO MARTINEZ,

                             Appellant                      No. 1736 EDA 2015


                   Appeal from the PCRA Order May 15, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015196-2008


BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                                FILED JANUARY 24, 2017

       Appellant, Ernesto Martinez, proceeding pro se, appeals from the order

entered May 15, 2015, denying his petition filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546 (“PCRA”). For the reasons

that follow, we vacate the PCRA court’s May 15, 2015 order and remand the

matter to the PCRA court for additional proceedings consistent with this

memorandum.

       The    certified     record   reflects   the   following   relevant   procedural

background of this matter. Appellant and a co-defendant, Sameech Rawls,

were tried before a jury for charges stemming from a shooting that killed

one person and wounded two others. On March 10, 2010, Appellant was

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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convicted of first degree murder and lesser offenses and sentenced to

mandatory life imprisonment. We affirmed Appellant’s judgment of sentence

on September 16, 2011. Commonwealth v. Martinez, 2399 EDA 2010, 34

A.3d    229     (Pa.    Super.     filed   September   16,   2011)   (unpublished

memorandum), and the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal.          Commonwealth v. Martinez, 40 A.3d

1235 (Pa. 2012).       On October 1, 2012, the United States Supreme Court

denied Appellant’s petition for writ of certiorari. Martinez v. Pennsylvania,

___ U.S. ___, 133 S.Ct. 369 (October 1, 2012).

       On August 22, 2013, Appellant filed a pro se PCRA petition raising an

allegation of ineffective assistance of trial counsel. PCRA counsel entered his

appearance, and on May 9, 2014, filed a no-merit letter and a motion to

withdraw under Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)

(en banc) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).1 In

the no-merit letter, PCRA counsel averred that the PCRA petition was

untimely because it was filed more than one year after Appellant’s judgment

of sentence became final.         PCRA counsel’s position on the timeliness was

premised on the following representation to the PCRA court:

            In the present matter, [Appellant’s] Petition for Allocatur
       was denied by the Pennsylvania Supreme Court on March 21,
       2012. His judgment of sentence became final ninety days after
____________________________________________


1
  PCRA counsel did not specifically cite Commonwealth v. Turner in his
no-merit letter or in his motion to withdraw as counsel.



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       that date when [Appellant] did not file a Petition for Writ of
       Certiorari to the United States Supreme Court. Thus, judgment
       of sentence became final on or about June 21, 2012.
       [Appellant’s] PCRA was filed on August 22, 2013.         Thus,
       [Appellant’s] PCRA was more than two months late and is
       untimely.

Finley No-Merit Letter, 5/9/14, at 3.

       The certified docket indicates that the trial court issued a Pa.R.Crim.P.

907 notice of intent to dismiss the petition on May 13, 2014. 2 On June 6,

2014, Appellant filed a pro se motion to change counsel and to amend his

PCRA petition.      Appellant refuted PCRA counsel’s representation that his

petition was untimely by explaining that counsel failed to recognize that

Appellant had petitioned the United States Supreme Court for review of his

judgment of sentence, and the Supreme Court denied his petition on

October 1, 2012. Thus, Appellant averred that his PCRA petition was timely.

Appellant also requested leave to amend his PCRA petition to assert two

additional claims of ineffectiveness of counsel.

       On June 27, 2014, the PCRA court granted a motion for continuance

citing, “Defense Request for Further Investigation to Petitioner’s Response to

907 Notice.” Docket, 6/27/14. By this language, we deduce that the PCRA
____________________________________________


2
    The record certified on appeal is deficient in several respects. The
May 13, 2014 docket entry simply states, “Hearing”, and it is only by
reference to subsequent entries that we can ascertain that Pa.R.Crim.P. 907
notice was issued by the PCRA court on that date. Additionally, except for
the case-concluding May 15, 2015 order dismissing Appellant’s PCRA petition
and permitting PCRA counsel to withdraw, the record on appeal does not
include the text of any orders or notices filed by the PCRA court in these
proceedings.



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court viewed Appellant’s pro se motion to change counsel and amend his

petition as a permissible response to the PCRA court’s proposed dismissal of

his petition.   See Pa.R.Crim.P. 907 (“The defendant may respond to the

proposed dismissal [of the petition] within 20 days of the date of the

notice.”). If a response is filed, the PCRA court “thereafter shall order the

petition dismissed, grant leave to file an amended petition, or direct that the

proceedings continue.”   Id.   A further continuance for the identical reason

was granted by the PCRA court on August 22, 2014.

      On October 4, 2014, PCRA counsel filed an amended Finley letter and

a second motion to withdraw.        Counsel acknowledged that his original

assertion that Appellant’s petition was untimely was incorrect and proceeded

to address the sole ground for collateral relief raised in Appellant’s original

pro se petition, i.e., that trial counsel was ineffective when he failed to

object to Rawls’s counsel’s cross-examination of one of the victims, Luis

Rodriguez, with a prior statement given by Rodriguez.            PCRA counsel

concluded that Appellant’s claim was meritless.

      On December 16, 2014, Appellant filed a pro se document in

opposition to the Finley letter challenging PCRA counsel’s legal assessment

of his original ineffectiveness claim and faulting counsel’s failure to address

the two additional assertions of trial counsel’s deficient representation raised

in Appellant’s motion to amend the petition.      However, because Appellant

was represented by counsel, the prohibition on “hybrid representation”

precluded the PCRA court from ruling on the merits of this pro se motion.

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See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007)

(describing counseled defendant’s pro se post-sentence motion as “a nullity,

having no legal effect”).

      On January 16, 2015, the PCRA court sent Appellant a second

Pa.R.Crim.P. 907 notice of intent to dismiss his petition.      Appellant filed a

pro se response to the Rule 907 notice, reiterating his position that PCRA

counsel’s no-merit letter failed to address his supplementary ineffectiveness

claims. On May 15, 2015, the PCRA court dismissed Appellant’s petition and

granted counsel’s motion to withdraw. Appellant timely appealed.

      Appellant raises the following issues on appeal:

            A. Was not trial counsel ineffective for failing to object to
      the reading and showing of [the victim’s] out-of-court
      statement?

             B. Was not PCRA counsel ineffective for failing to raise
      trial counsel[’s] [ineffectiveness] for failing to object to [the
      prosecutor’s] questions, and Officers William Hunter[’s] and
      Detective Gregory Santamala testimony concerning [the victim]?

           C. Was not trial counsel ineffective for failing to file a
      motion [in limine] to exclude the prejudicial .38 caliber revolver?

Appellant’s Brief at 6 (full capitalization omitted).

      We begin by reference to the PCRA court’s Pa.R.A.P. 1925(a) opinion

wherein the court rejected Appellant’s assertion that trial counsel was

ineffective for failing to object to Rawls’s counsel’s cross-examination of

Rodriguez. PCRA Court Opinion, 3/11/16, at 4–6. The PCRA court did not

consider   Appellant’s   other   allegations   of   ineffectiveness   or   mention



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Appellant’s response to the second 907 notice that cited PCRA counsel’s

failure to address these additional claims.

      On December 5, 2016, the Commonwealth filed a letter in lieu of a

brief in this Court. Therein, the Commonwealth represented that it was:

      constrained to agree with [Appellant] that his appointed
      counsel’s “no merit” letter pursuant to Commonwealth v.
      Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) was defective
      in that it did not address two of the three issues [Appellant]
      attempted to raise pro se. Accordingly, the Commonwealth does
      not oppose a remand for the appointment of counsel and the
      filing of a new Finley letter or an amended petition.

Commonwealth’s Letter, 12/5/16, at unnumbered 1–2.

      Given the general procedural deficiencies in these proceedings, the

PCRA court’s failure to rule on Appellant’s motion to amend his petition, and

the Commonwealth’s characterization of PCRA counsel’s no-merit letter as

defective, in the interest of justice we vacate the PCRA court’s May 15, 2015

order denying Appellant’s petition. Additionally, we direct the PCRA court to

appoint new counsel within fifteen days of the date of this memorandum for

the filing of a counseled PCRA petition, followed by the PCRA court’s review

in the first instance within forty-five days.

      Order    vacated.      Case    remanded   for   consistent   proceedings.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2017




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