Commonwealth v. Rosado, 112520 PASUP, 2517 EDA 2019

Docket Nº:2517 EDA 2019
Opinion Judge:MUSMANNO, J.
Party Name:COMMONWEALTH OF PENNSYLVANIA v. FRANK ROSADO Appellant
Judge Panel:BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
Case Date:November 25, 2020
Court:Superior Court of Pennsylvania

COMMONWEALTH OF PENNSYLVANIA

v.

FRANK ROSADO Appellant

No. 2517 EDA 2019

Superior Court of Pennsylvania

November 25, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered August 12, 2019 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1008191-1989

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM

MUSMANNO, J.

Frank Rosado ("Rosado") appeals, pro se, from the Order dismissing his second Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA").1 Because the PCRA court failed to issue notice of its intent to dismiss under Pa.R.Crim.P. 907(a) prior to issuing its Order, we vacate and remand.

On July 5, 1990, Rosado was convicted of one count of first-degree murder, and two counts each of recklessly endangering another person and possession of an instrument of crime, for the killing of Luis Diaz in Philadelphia in September 1989. The trial court sentenced Rosado to an aggregate term of life in prison. This Court affirmed Rosado's judgment of sentence, and the Pennsylvania Supreme Court denied allowance of appeal. See Commonwealth v. Rosado, 617 A.2d 392 (Pa. Super. 1992) (unpublished memorandum), appeal denied, 634 A.2d 1115 (Pa. 1993).

On March 22, 1999, Rosado filed his first, pro se, PCRA Petition. Rosado was appointed counsel, who filed a Turner/Finley2 no-merit letter. The PCRA court granted counsel leave to withdraw and dismissed Rosado's Petition. This Court subsequently affirmed the dismissal. See Commonwealth v. Rosado, 3414 EDA 2001 (Pa. Super. 2002) (unpublished memorandum).

On December 9, 2016, Rosado filed the instant, pro se, PCRA Petition. In his Petition, Rosado alleged that in October 2016, he received exculpatory evidence in the form of an Affidavit from an eyewitness. On August 12, 2019, the PCRA court issued an Order dismissing Rosado's Petition as untimely filed, pursuant to section 9545(b). Two days later, on August 14, 2019, the PCRA court issued a Notice, pursuant to Pa.R.Crim.P. 907, advising Rosado of its intent to dismiss his Petition without a hearing.

Rosado filed a timely Notice of Appeal. Although the trial court did not order Rosado to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal, the PCRA court did issue an Opinion. In its Opinion, the PCRA court requested that this Court remand Rosado's appeal, as the PCRA court had inadvertently issued its Order dismissing Rosado's Petition prior to issuing the Rule 907 Notice of its intent to do so. Trial Court Opinion, 12/6/19, at 1-2.3], 4

On appeal, Rosado argues the following: Did the PCRA Court [d]ismiss [Rosado]'s [PCRA] Petition without serving [Rosado] with a timely Notice of Intent to Dismiss [pursuant to Pa.R.Crim.P. 907, ] and/or [d]enying [Rosado] his mandated right to file [o]bjections to the [Rule] 907 [Notice], in violation of Finely

[(sic)]?

Brief for Appellant at 4. Our standard of review for the denial of PCRA relief is well settled.

"Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Hanible, [] 30 A.3d 426, 438 ([Pa.] 2011) (citing Commonwealth v. Colavita, [] 993 A.2d 874, 886 ([Pa.] 2010)). We...

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