Com. v. Friend

• Decision Date: 30 March 2006
• Citation: 896 A.2d 607
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Alan D. FRIEND, Appellant.
• Court: Pennsylvania Superior Court

896 A.2d 607

COMMONWEALTH of Pennsylvania, Appellee v. Alan D. FRIEND, Appellant.

Superior Court of Pennsylvania.

Submitted December 5, 2005.

Filed March 30, 2006.

Alan D. Friend, Sr., appellant, Pro Se.

Jack R. Heneks, Jr., Assistant District Attorney, Unknown, for Commonwealth, appellee.

BEFORE: DEL SOLE, P.J., BENDER, J., and McEWEN, P.J.E.

OPINION PER CURIAM:

¶ 1 Appellant, Alan D. Friend, acting pro se, brings this appeal from the order dismissing his petition, filed pursuant to the Post Conviction Relief Act (PCRA),¹ seeking relief from the judgment of sentence to serve a term of imprisonment of from eight and one-half years to twenty years. That sentence had been imposed after a jury convicted appellant of involuntary deviate sexual intercourse, statutory sexual assault, aggravated indecent assault, indecent assault, and corruption of a minor. We are compelled to vacate the order of the trial court and remand this case for further proceedings.

¶ 2 The facts giving rise to the convictions in this case, as summarized by a panel of this Court, which affirmed the judgment of sentence on direct appeal, are as follows:

The charges brought against appellant arise from an alleged incident of sexual molestation by appellant perpetrated against his five year old son on an unspecified date between April and June, 2000. The child victim, at the time, was living in a mobile home with his mother, two brothers, and appellant, his father. The victim testified that, on a summer morning in 2000, appellant led him to an isolated room in the back of the trailer and engaged him in oral and anal intercourse. The child victim further testified that such incidents had occurred more than once and that appellant told him not to disclose their actions to his mother. Appellant moved out of the trailer home residence on June 6, 2000, and the mother of the child victim testified that, months later, on February 22, 2001, the child informed her of the molestation. The mother of the child victim, upon hearing the allegation from her son, notified the police, took him to child services, and had him examined by a family physician, Dr. Efren Leonida. The police issued a criminal complaint against appellant on March 28, 2001, and arrested him on April 3, 2001. At trial, the child victim related the incidents of sexual misconduct and the doctor testified as an expert in family medicine that, while the child victim showed no physical signs of sexual molestation, the lapse of time between the alleged sexual assault and the examination, on February 28, 2001, could explain the absence of such physical evidence. The jury thereafter found appellant guilty of the abovementioned offenses.

The distinguished Judge John F. Wagner, Jr., of the Fayette County Court of Common Pleas, on February 5, 2003, sentenced appellant to serve the mandatory minimum term of incarceration for involuntary deviate sexual intercourse, a term of five years, and a maximum term of ten years. The trial court delayed the imposition of sentence on the remaining charges for one week, until February 12, 2003, so that the Fayette County Adult Probation Department could prepare a presentence report. On February 12, 2003, the trial court sentenced appellant to a term of incarceration of from two and one half years to five years for the statutory sexual assault, and to a term of incarceration of from one year to five years for corruption of a minor, to run consecutive to his sentence for involuntary deviate sexual intercourse.

Commonwealth v. Friend, 844 A.2d 1279 (Pa.Super.2003) (unpublished memorandum) (No. 803 WDA 2003, Memorandum filed December 3, 2003, pp. 1-3).

¶ 3 Appellant did not file with the Pennsylvania Supreme Court a petition for allowance of appeal from the decision of this Court, but one year after this Court affirmed the judgment of sentence, appellant, on December 6, 2004, filed a timely pro se petition in the Court of Common Pleas of Fayette County seeking PCRA relief. Counsel was appointed to assist appellant on December 13, 2004, but she did not amend or seek to amend the pro se petition. Six weeks after appointment, on January 27, 2005, she filed a motion to withdraw as counsel,² including a Turner-Finley letter³ in which she asserted that there were "no viable issues under the [A]ct which would afford relief under the PCRA." Following this motion the trial judge, on February 10, 2005, issued a Rule 907⁴ notice to appellant advising him that the court intended to dismiss his PCRA petition without a hearing. In that notice, and in conformance with the Rule, the trial court advised appellant that he had twenty days within which to respond to the Rule 907 notice. The trial court, however, on that same day, February 10, 2005, despite the twenty day notice to appellant, and in contravention of the clear language of Rule 907, "dismissed" appellant's petition by filing the following order:

AND NOW, this 10th day of February, 2005, it is hereby ORDERED and DIRECTED that the Petition to Withdraw PCRA and to Withdraw as Counsel for the above case is granted and that Dianne H. Zerega, Esquire is granted permission to withdraw her appearance in this case. It is further ORDERED that the Petitioner's PCRA is hereby withdrawn.

                     By the Court
                     /S/
                    ______________
                

Order of Court of Common Pleas of Fayette County at No. 1068 of 2001, February 10, 2005. This order was not accompanied by an opinion or explanatory memorandum. Subsequently, on March 7, 2005, the trial court issued a further order, which read as follows:

AND NOW, this 7th day of March, 2005, after review of the record and consideration of the Finley no-merit letter filed by counsel for the defendant, the pro se Motion for Post Conviction Collateral Relief is hereby DISMISSED without hearing.

Further, the Clerk of Courts of Fayette County is DIRECTED to serve this notice upon counsel and the defendant.

                    By the Court
                    /S/
                   _______________
                

Order of Court of Common Pleas of Fayette County at No. 1068 of 2001, March 7, 2005. It bears emphasis that, once again, the order was not accompanied by an opinion or explanatory memorandum.

¶ 4 The instant appeal was filed on March 31, 2005.⁵ The trial judge, upon receipt of notice of the appeal, without seeking from appellant a statement of issues involved on appeal,⁶ filed what he described as a "Statement in Lieu of Opinion" which stated:

AND NOW, this 13th day of April, 2005, pursuant to Pa.R.A.P.1925(a), the within statement in lieu of opinion is hereby filed as the following matters appear of record to support the Order of March 7, 2005, which dismissed the defendant's pro se motion for Post Conviction Collateral Relief, to wit:

(a) Order dated December 13, 2004, appointing counsel for the defendant on his pro se motion for Post Conviction Collateral Relief;

(b) Finley no-merit letter in the form of a brief filed by counsel on January 27, 2005;

(c) Notice to the defendant dated February 10, 2005, indicating intention to dismiss the pro se motion for Post Conviction Collateral Relief;

(d) Order of February 10, 2005, dismissing the defendant's pro se motion for Post Conviction Collateral Relief after consideration of the Finley no-merit letter and review of the record by the Court; and

(e) Order of March 7, 2005, dismissing the defendant's pro se motion for Post Conviction Collateral Relief.

Statement in Lieu of Opinion, Wagner, Jr., J., April 13, 2005.

¶ 5 Appellant, in the pro se brief submitted in support of this appeal, sets out the following questions for our review, which we recite verbatim:

Whether the appellant was afforded ineffective assistance of trial counsel, where counsel appeared to be unaware of the Pennsylvania statutes governing the admission of hearsay testimony and sentencing procedure, where counsel failed to explore exculpatory issues, acquire exculpatory documents, investigate potentially exculpatory witnesses, conduct a thorough pre-trial investigation, or provide any mitigating evidence at sentencing, and where counsel, through the failure to thoroughly question Commonwealth witnesses, did not submit the Commonwealth's case to a constitutionally sufficient adversarial challenge?

Whether the appellant was afforded ineffective assistance of appellate counsel, where counsel failed to develop or perfect issues to be presented on direct appeal and subsequently failed to file an appeal with the Pennsylvania Supreme Court?

Whether the appellant was afforded ineffective assistance of PCRA counsel where counsel misrepresented the law, ignored issues suggested by the appellant, and acted as amicus curiae by promoting an outcome of the appellant's petition that was favorable to the Commonwealth?

Whether the appellant's trial was fatally flawed by the constitutionally illegal admission of hearsay testimony, which rendered the outcome of the appellant's trial unreliable?

Whether the imposed aggregate sentence of 8½ to 20 years is illegal because the sentencing court failed to comply with the Pennsylvania statutes governing sentencing procedure and failed to observe the fundamental norms which underlie the sentencing process?

Whether the imposed aggregate sentence of 8½ to 20 years is excessive because the sentence imposed is outside of the appropriate sentencing guidelines without valid reasons and thus exceeds any reasonable need of punishment for the offenses?

Prior to addressing these questions, however, we are obliged to examine the procedures that preceded this appeal, specifically the efforts by appointed counsel to withdraw and the ultimate dismissal of the underlying PCRA petition.

¶ 6 We first reiterate that an indigent PCRA petitioner has an absolute right to the assistance of counsel during a first attempt at obtaining such collateral relief, a cardinal principle ably addressed by our eminent colleague Judge Berle M. Schiller in Commonwealth v. Peterson, 453 Pa.Super. 271, 683 A.2d 908 (1996):...