Com. v. Wallace, S.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA Appellee :

:

v. :

:

STEPHEN JOSEPH WALLACE, :

:

Appellant : No. 737 WDA 2020 Appeal from the PCRA Order Entered June 30, 2020 in the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011757-2002

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA Appellee :

:

v. :

:

STEPHEN JOSEPH WALLACE, :

:

Appellant : No. 738 WDA 2020 Appeal from the PCRA Order Entered June 30, 2020 in the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011756-2002

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA Appellee :

:

v. :

:

STEPHEN JOSEPH WALLACE, :

:

Appellant : No. 739 WDA 2020 Appeal from the PCRA Order Entered June 30, 2020 in the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0003961-2003

BEFORE: DUBOW, J., MURRAY, J. and STRASSBURGER, J.* JUDGMENT ORDER BY DUBOW, J.: FILED: August 31, 2021

Appellant, Stephen Joseph Wallace, appeals from the June 30, 2020 Order dismissing his Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541–9546.1 With this appeal, Appellant’s counsel has filed a Motion to Withdraw as Counsel and an Anders2 Brief. Before counsel may withdraw under the PCRA, we must determine if counsel has complied with the technical requirements of Turner and Finley.

Pursuant to Turner/Finley, independent review of the record by competent counsel is required before withdrawal on collateral appeal is permitted. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is then required to submit a no-merit letter (1) detailing the nature and extent of his or her review; (2) listing each issue the petitioner wished to have reviewed; and (3) providing an explanation of why the petitioner’s issues were meritless. Id. The court then conducts its own independent review of 1 On August 11, 2020, this Court consolidated sua sponte the above-numbered appeals.

2 Anders v. California, 386 U.S. 738 (1967). Although counsel has filed an Anders Brief, the proper mechanism when seeking to withdraw in PCRA proceedings is a Turner/Finley no-merit letter. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, because an Anders brief provides greater protection to a criminal appellant, we may accept an Anders brief in lieu of a Turner/Finley no-merit letter. Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004). * Retired Senior Judge assigned to the Superior Court. the record to determine if the petition is meritless. Id. “Counsel must also send to the petitioner: (1) a copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation omitted).

Our review of the record indicates that counsel did not serve a copy of the Anders Brief and Motion to Withdraw on Appellant. Instead, the proofs of service attached to counsel’s filings indicate service on the Commonwealth only. In addition, no proof of service was included with the no-merit letter appended to the Motion to Withdraw. Thus, counsel has not complied with the Turner/Finley notice requirements.

Accordingly, we deny counsel’s Motion to Withdraw and direct counsel, within ten days of the filing date of this decision, to send a copy of the no- merit Letter, Motion to Withdraw, and Anders brief to Appellant with amended certificates demonstrating proper service on Appellant and the Commonwealth.

Motion to Withdraw as Counsel denied. Panel jurisdiction retained. Judge Murray joins the Judgment Order.

Judge Strassburger did not participate in the consideration or decision of this case.