Commonwealth v. McCollum

• Decision Date: 29 December 2020
• Docket Number: No. 1889 MDA 2019,1889 MDA 2019
• Citation: 245 A.3d 1106 (Table)
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Steve Richard MCCOLLUM, Jr., Appellant
• Court: Pennsylvania Superior Court

245 A.3d 1106 (Table)

COMMONWEALTH of Pennsylvania, Appellee v. Steve Richard MCCOLLUM, Jr., Appellant

No. 1889 MDA 2019

Superior Court of Pennsylvania.

Filed December 29, 2020

MEMORANDUM BY STRASSBURGER, J.:

Steve Richard McCollum, Jr., (Appellant) appeals pro se from the April 3, 2019 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. ¹ Upon review, we quash.

We provide the following background. On December 18, 2012, Appellant was convicted by a jury of attempted murder, aggravated assault, possession of a firearm prohibited, and carrying a firearm without a license, and sentenced to an aggregate term of 20 to 40 years of incarceration. ² Appellant filed post-sentence motions, which the trial court denied. On direct appeal, this Court affirmed Appellant's judgment of sentence, and on July 30, 2014, our Supreme Court denied his petition for allowance of appeal. McCollum , 97 A.3d 806, appeal denied , 96 A.3d 1026 (Pa. 2014).

On June 24, 2015, Appellant timely filed pro se his first PCRA petition. Of relevance to the instant appeal, Appellant claimed, inter alia , that trial counsel rendered ineffective assistance by advising him not to testify. Counsel was appointed and ultimately filed a Turner/Finley³ no-merit letter and accompanying request to withdraw.

On December 7, 2016, the PCRA court permitted counsel to withdraw and issued its Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's petition, advising Appellant that he had 20 days to respond. Appellant did not receive the notice to dismiss until December 29, 2016—beyond the allotted 20–day response window. On January 1, 2017, Appellant filed a motion for extension of time to file objections to the Rule 907 notice. On January 11, 2017, the PCRA court dismissed Appellant's PCRA petition without a hearing. On January 17, 2017, the court issued an order denying Appellant's request for an extension to respond to its Rule 907 notice, noting that "Petitioner was given 20 days from [December 7, 2016] to file a response [and] [a]s neither a response nor a request for extension was received within that timeframe, th[e PCRA c]ourt dismissed the PCRA Petition by Order dated January 11, 2017." Order, 1/19/[20]17.

Commonwealth v. McCollum , 183 A.3d 1041 (Pa. Super. 2018) (unpublished memorandum at 3-4) (party designations altered; footnote omitted).

Appellant pro se filed a notice of appeal to this Court. Upon review, we reversed the order dismissing Appellant's PCRA petition, finding that

we cannot deem Appellant's decision not to testify as either knowing or intelligent where counsel allegedly advised Appellant not to testify based on the incorrect belief that the Commonwealth would impeach him on his prior non- crimen falsi convictions. Additionally, we recognize that the PCRA court applied the incorrect standard in assessing this claim. The proper inquiry is not whether Appellant's testimony would have changed the outcome of his trial, but, rather, whether the result of the waiver proceeding would have been different absent counsel's ineffectiveness.

Because Appellant's petition was dismissed without a hearing, we do not have the benefit of counsel's testimony explaining why, in fact, he advised Appellant not to testify. Under such circumstances, the PCRA court erred in dismissing Appellant's petition without a hearing where there was a genuine issue of material fact that may entitle him to relief. ⁷

⁷ Having concluded that the court improperly dismissed Appellant's petition without a hearing, we also find that dismissing his petition without first giving Appellant the opportunity to respond to the court's Rule 907 notice was erroneous and that permitting counsel to withdraw pursuant to Turner / Finley was likewise improper.

Accordingly, we remand for the appointment of PCRA counsel, see Pa.R.Crim.P. 904(C), and a hearing on Appellant's claim. If, after the hearing, the PCRA court concludes that counsel's decision was not reasonable and that he was ineffective in advising Appellant not to testify at trial, a new trial shall be ordered. If, however, the PCRA court concludes that counsel was not ineffective for advising Appellant to not testify, then it shall dismiss his petition.

Id. (unpublished memorandum at 7-9) (party designations altered; some citations and footnotes omitted). We found Appellant's remaining PCRA claims meritless. Id. (unpublished memorandum at 9 n.9).

On remand, in accordance with our directive, the PCRA court appointed counsel to represent Appellant at a scheduled PCRA hearing solely on the question of whether trial counsel rendered ineffective assistance in advising Appellant not to testify. ⁴ The hearing was held on November 18, 2018, during which the PCRA court heard testimony from Appellant and trial counsel.

In the meantime, on November 16, 2018, counsel filed a motion to amend Appellant's PCRA petition to include a claim of after-discovered evidence. On December 5, 2018, the PCRA court granted the motion, and on January 4, 2019, Appellant filed an amended PCRA petition.

On April 3, 2019, in accordance with our limited remand, the PCRA court dismissed Appellant's June 24, 2015 PCRA petition because it found counsel was not ineffective in advising Appellant to refrain from testifying. PCRA Court Order, 4/3/2019. Within the order, the PCRA court advised Appellant that he had the right to appeal within 30 days, and clarified that the order did not dispose of the January 4, 2019 amended PCRA petition. Id. at 2 & n.2 (unnumbered). Appellant did not file a notice of appeal from that order.

On June 18, 2019, the PCRA court held a hearing on the after-discovered evidence claim raised in Appellant's amended PCRA petition. On August 23, 2019, the PCRA court dismissed that petition and advised Appellant that he had 30 days to appeal from that order.

On September 23, 2019, Appellant pro se filed a notice of appeal from the April 3, 2019 and August 23, 2019 orders. ⁵ Because Appellant erroneously filed his notice with this Court, we forwarded it to the PCRA court for docketing. See Pa. R.A.P. 905(a)(4) (explaining the procedure for a notice of appeal mistakenly filed in an appellate court). Instead of docketing the notice of appeal, the PCRA court forwarded it to counsel. On September 24, 2019, counsel filed a motion to withdraw and request for a hearing pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998). On October 25, 2019, following a video-conference hearing, the PCRA court found Appellant's decision to proceed pro se voluntary, knowing, and intelligent, and granted counsel's motion to withdraw.

In November 2019, Appellant inquired with the PCRA court about the status of his appeal. In response, the PCRA court reinstated Appellant's PCRA appeal rights nunc pro tunc . PCRA Court Order, 11/15/2019. Despite this order for Appellant to file a new notice of appeal, the PCRA court then docketed the September 23, 2019 notice, which was ultimately docketed in this Court at the instant appeal. ⁶

Appellant filed a second notice of appeal from the April 3, 2019 and August 23, 2019 orders in response to the PCRA court's November 15, 2019 order. The PCRA court docketed that notice of appeal on December 5, 2019, and it was docketed in this Court at No. 1963 MDA 2019. Thereafter, this Court issued a per curiam order directing Appellant to show cause why the appeal should not be quashed as, inter alia , duplicative of the instant appeal. Appellant filed a response, and on March 5, 2020, this Court dismissed the appeal at No. 1963 MDA 2019 as duplicative of the instant appeal.

Regarding the instant appeal, this Court issued a per curiam order directing Appellant to show cause why the appeal should not be quashed as untimely filed and filed in violation of Pa.R.A.P. 341. ⁷ Appellant responded, and this Court discharged the rule to show cause and deferred the issues to the merits panel for disposition. On appeal, Appellant challenges the PCRA court's dismissal of (1) his ineffective assistance of counsel claim on remand, and (2) his after-discovered evidence claim set forth in the amended petition.

At the outset, we note that our review is limited by our 2018 remand. In that regard, we are guided by our Supreme Court's decision in Commonwealth v. Sepulveda , 144 A.3d 1270 (Pa. 2016).

Rule 905(A) gives the PCRA court discretion to "grant leave to amend or withdraw a petition for [PCRA] relief at any time," and states that "[a]mendment shall be freely allowed to achieve substantial justice." Pa.R.Crim.P. 905(A). Rule 905(A) was created "to provide PCRA petitioners with a legitimate opportunity to present their claims to the PCRA court in a manner sufficient to avoid dismissal due to a correctable defect in claim pleading or presentation." Commonwealth v. McGill , 832 A.2d 1014, 1024 (Pa. 2003) (citing Commonwealth v. Williams , 782 A.2d 517, 526-27 (Pa. 2001) ).

Once the PCRA court renders a decision on a PCRA petition, however, that matter is concluded before the PCRA court, having been fully adjudicated by that court, and the order generated is a final order that is appealable by the losing party. See Pa.R.Crim.P. 910 ("An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal."); Commonwealth v. Bryant , 780 A.2d 646, 648 (Pa. 2001). Although liberal amendment of a PCRA petition is, in some circumstances, permitted beyond the one-year timeframe, Rule 905(A) cannot be construed as permitting the rejuvenation of a PCRA petition that has been fully adjudicated by the PCRA court. We have consistently held that in the absence of permission from this Court, a PCRA petitioner is not entitled to raise new claims following our remand for further PCRA proceedings.

Our mandate in [the prior appeal] did not bestow upon the PCRA court jurisdiction over the

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