Com. v. Andress, M. ( 2023 )

J-S42008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK ALAN ANDRESS :
:
Appellant : No. 1407 WDA 2021
Appeal from the PCRA Order Entered October 27, 2021
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000403-2015
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 22, 2023
Mark Alan Andress appeals pro se from the order that dismissed his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We vacate
the order and remand with instructions.
The facts underlying Appellant’s convictions are as follows:
At 7:09 a.m. on July 14, 2015, Assistant Chief Michael Ward and
Officer Clayton Yohe of the Bradford City Police department were
dispatched to an apartment for a reported domestic violence
incident. When they arrived, the victim Carol VanHorn told the
officers that Appellant, her boyfriend, had grabbed her and
attempted to shove her towards an open window. She feared
being pushed out of the window, so she dropped to the ground.
Appellant then left the apartment.
Both officers observed that Ms. VanHorn was crying and had
fresh markings on her skin. Appellant returned while the officers
spoke to the victim. He was visibly agitated and was shouting
profanities. [Assistant] Chief Ward asked Appellant to place his
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* Retired Senior Judge assigned to the Superior Court.
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hands on the wall to pat him down for safety. Appellant complied,
and Officer Ward then told him that he would be placed in
restraints. [Assistant] Chief Ward tried to pull down Appellant’s
arm to place him in handcuffs, but Appellant spun and kicked him
in the ankle. A struggle ensued, and Appellant choked the officer
for approximately one minute. Appellant eventually released
[Assistant] Chief Ward, who subsequently incurred financial costs
for the treatment of his ankle.
For these acts, Appellant was charged with two counts of
aggravated assault, both of which listed [Assistant] Chief Ward as
the victim, in addition to the following crimes: resisting arrest, two
counts of simple assault—one each for attacking Ms. VanHorn and
[Assistant] Chief Ward—and one count of summary harassment.
Following a jury trial, Appellant was acquitted of one count of
aggravated assault, and convicted of all remaining charges.
Commonwealth v. Andress, 181 A.3d 450 (Pa.Super. 2017) (“Andress I”)
(unpublished memorandum at 1-2). On direct appeal, this Court rejected
Appellant’s claims that the evidence was insufficient to show that the arrest
that he resisted had been lawful or to warrant the imposition of restitution,
and affirmed Appellant’s judgment of sentence. Id. Thereafter, Appellant did
not seek discretionary review in our Supreme Court.
On November 26, 2018, Appellant filed a timely PCRA petition. Therein
Appellant raised numerous issues. The claims largely related to allegations
that the x-ray of Assistant Chief Ward’s ankle admitted at trial without
objection was not properly authenticated and was actually from a leg injury a
different officer sustained in 2006, and that Appellant was the victim of an
assault at the hands of the police, not the other way around. See PCRA
Petition, 11/26/18, at ¶¶ 6(A)-(D), (T)-(X).
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However, Appellant also included multiple claims of ineffective
assistance of counsel pertaining to the three different attorneys who had
represented Appellant. For example, Appellant alleged that Dennis Luttner,
Esquire, was ineffective in various aspects of his handling of the preliminary
hearing. Id. at ¶¶ (G)-(I). Separately, Appellant asserted many challenges
to the effectiveness of trial counsel, Jarrett Smith, Esquire, ranging from the
failure to pursue a defense of self-defense, not investigating to find
eyewitnesses, not properly vetting the witnesses he did call, not subpoenaing
medical records, not objecting to certain evidentiary rulings, and not calling
Appellant to testify in his own defense. Id. at ¶¶ (J)-(S), (Y)-(AC). Further,
Appellant contended that he received ineffective assistance from the refusal
of Todd Mosser, Esquire, to raise certain claims while he represented Appellant
on direct appeal. Id. at ¶¶ (AD)-(AI).
This Court detailed the missteps by the PCRA court in connection with
its adjudication of this petition, and Appellant’s attempts to correct them, as
follows:
The certified record indicates the petition was subsequently
misplaced. Our review further reveals:
--[A]n undated yellow post-it affixed to the petition with the
handwritten note, “Judge-This was in the wrong file. It may
need to be scheduled. It was filed in November.”
--[C]ounsel was never appointed.
--[N]o hearing was scheduled, nor did the court issue notice
pursuant to Pennsylvania Rule of Criminal Procedure 907.
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--On August 8, 2019, the court summarily dismissed the
petition in an order which incorrectly stated the petition was
a “second PCRA petition and clearly untimely filed.”
--On September 6, 2019, Appellant filed a timely notice of
appeal, which the McKean County Clerk of Courts never
transmitted to the Prothonotary of this Court.
On March 13, 2020, Appellant filed [another] pro se PCRA
petition, his second. The PCRA court did not appoint counsel. On
April 23, 2020, the PCRA court issued Rule 907 notice, and
Appellant filed on May 4, 2020, a pro se response requesting a
hearing. Also that same day, Appellant filed a motion for
discovery, motion for appointment of counsel, and motion “to
Move Forward in the Proceedings of the PCRA court.” The PCRA
court denied all three motions on May 6, 2020. On May 15, 2020,
the PCRA court dismissed Appellant’s petition without a hearing.
Appellant timely appealed.
Commonwealth v. Andress, 260 A.3d 99 (Pa.Super. 2021) (“Andress II”)
(non-precedential decision at 1-3) (cleaned up). Based upon what we
acknowledged to be an “extraordinary breakdown in the judicial process,” this
Court vacated the order dismissing his second PCRA petition and remanded
for the appointment of counsel to assist Appellant in seeking PCRA relief nunc
pro tunc. Id. at 6-7 (internal quotation marks omitted).
On remand, the PCRA court appointed counsel who examined
Appellant’s pro se petitions and concluded that none of the issues implicated
therein was availing. Accordingly, counsel filed a petition to withdraw and a
no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). Of relevance to this appeal, PCRA counsel addressed the issues
Appellant raised “most prominently” in the petition. See Turner/Finley
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Letter, 8/27/21, at unnumbered 3. Specifically, PCRA counsel explained his
reasons for concluding there was no merit to the claims that: (1) counsel
failed to object to the introduction of the x-ray or obtain records about a prior
leg injury suffered by Assistant Chief Ward; (2) the x-ray admitted was not
that of Assistant Chief Ward; (3) Attorney Smith did not attempt to get the
medical records; and (4) the trial judge had a conflict of interest and
improperly precluded counsel from questioning Ms. VanHorn about the reason
for the argument on the day in question. Id. However, the no-merit letter
failed to address any of the other claims of ineffective assistance described
above.
On October 12, 2021, the PCRA court filed an opinion detailing its
independent review of the issues addressed in PCRA counsel’s no-merit letter
and its reasons for agreeing with counsel that the claims were meritless. See
PCRA Court Opinion, 10/12/21, at 3-7. It therefore issued notice of its intent
to dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907,
and also entered an order permitting PCRA counsel to withdraw. Id. at 8;
Order, 10/12/21. Appellant filed a response to the Rule 907 notice,
complaining, among other things, that PCRA counsel in his no-merit letter “did
not mention any of the issues I stated in my petition that I stated to him,”
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and listing a litany of issues.1 Rule 907 Response, 10/19/21, at unnumbered
1. The PCRA court nonetheless dismissed Appellant’s petition by order of
October 27, 2021.
Appellant filed a timely notice of appeal. On November 23, 2021, the
PCRA court entered an order directing Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.2 Appellant filed a statement
following the grant of a requested extension of time. Therein, Appellant, inter
alia, disputed that PCRA counsel completed a thorough review and listed a
number of claims of ineffectiveness assistance of prior counsel that PCRA
counsel failed to address in his Turner-Finley letter. See Concise Statement,
1/6/22, at unnumbered 4-7. See also id. at Claim 12 (assailing PCRA
counsel’s performance).
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1 A supplemental record certified to this Court on April 1, 2022, contains
documents Appellant wished to add to the record, namely correspondence
purported to send in October 2021 complaining about PCRA counsel’s
performance. Given our disposition based upon Appellant’s response to the
Rule 907 notice, we need not address Appellant’s claims that the PCRA court
erred in refusing to grant his request to supplement the record.
2 The PCRA court’s order did not comply with Pa.R.A.P. 1925(b)(3)(iii) in that
it did not provide the address to which Appellant could mail the statement.
See Boyle v. Main Line Health, Inc., 272 A.3d 466 (Pa.Super. 2022) (non-
precedential decision at 11, n.8) (“Where the trial court’s order is inconsistent
with the requirements of Rule 1925(b)(3)(iii), . . . the waiver provisions of
subsection (b)(4)(vii) do not apply. It would be fundamentally unfair to
require appellants to strictly comply with the requirements of Rule 1925, but
not require the same diligence from the trial court requesting a Rule 1925(b)
statement.”). We also note that, while the order directed “counsel’s attention”
to Pa.R.A.P. 2116(a), Appellant was pro se at the time.
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The PCRA court filed a Pa.R.A.P. 1925(a) opinion on January 7, 2022,
indicating that, upon review of Appellant’s lengthy Rule 1925(b) statement, it
had addressed the one issue that was preserved for appeal, namely that the
x-ray introduced at trial was fraudulent. The court referred us to its
October 12, 2021 opinion regarding that issue.3
In this Court, Appellant filed a brief stating for our review thirty-three
issues implicating a wide range of errors. Pertinent to our disposition,
Appellant asserts that PCRA counsel was impaired during his consultation with
Appellant and that the PCRA court erred in ignoring his complaints about PCRA
counsel. See Appellant’s brief at 4. Appellant argues that the PCRA court
failed to follow this Court’s prior order by providing him with competent
counsel, as PCRA counsel filed a Turner-Finley letter that did not address
Appellant’s “actual” issues. Id. at 20. Appellant also maintains that PCRA
counsel lied about reviewing the court record. Id. at 26-27.
As this Court has long observed:
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. This Court has admonished, accordingly,
that the point in time at which a trial court may determine that a
PCRA petitioner’s claims are frivolous or meritless is after the
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3 Appellant filed applications for relief in this Court on November 14, 2022,
and November 28, 2022, asserting that his case should be dismissed and that
he should be immediately released from custody because the PCRA court did
not timely file its Rule 1925(a) opinion. Since Appellant’s requests have no
basis in law or fact, his applications are hereby denied.
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petitioner has been afforded a full and fair opportunity to present
those claims.
Commonwealth v. Karanicolas, 836 A.2d 940, 945 (Pa.Super. 2003)
(cleaned up, emphases added). Accordingly, PCRA counsel must either pursue
the meritorious claims his client wishes to raise, or, if PCRA counsel believes
that there are no meritorious issues, may instead of filing an amended petition
seek to withdraw pursuant to Turner and Finley.
In order to withdraw, counsel must satisfy all the procedural
requirements of Turner/Finley, including, among other things, filing a no-
merit brief. This brief “must: (1) detail the nature and extent of counsel’s
review of the case; (2) list each issue the petitioner wishes to have reviewed;
and (3) explain counsel’s reasoning for concluding that the petitioner’s
issues are meritless. Counsel must also send a copy of the brief to the
petitioner, along with a copy of the petition to withdraw, and inform the
petitioner of the right to proceed pro se or to retain new counsel.”
Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa.Super. 2019) (emphases
added). We have explained:
Where PCRA counsel’s no-merit letter does not discuss all of the
issues that the convicted defendant has raised in a first PCRA
petition and explain why they lack merit, it does not satisfy these
mandatory requirements and dismissal of the PCRA petition
without requiring counsel to file an amended PCRA petition or a
further, adequate no-merit letter is a deprivation of the right to
counsel on the PCRA petition.
Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa.Super. 2019)
(emphasis added).
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Our above summary of the certified record establishes that, to date,
Appellant has yet to receive a full opportunity to present his claims with the
assistance of counsel because PCRA counsel failed to acknowledge multiple
claims raised by Appellant in his pro se petition and to explain why each claim
lacks merit. Accordingly, we are constrained to vacate the order dismissing
Appellant’s 2018 pro se PCRA petition and remand for the appointment of
counsel to either file an amended PCRA petition or a petition to withdraw with
a proper Turner/Finley brief addressing all of the issues raised in the pro se
petition. See Kelsey, supra at 1140 (vacating order dismissing PCRA petition
and remanding for the appointment of new PCRA counsel where “PCRA
counsel's no-merit letter discussed only a subset of the issues that Appellant
stated in his PCRA petition”).
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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