Appeal from the PCRA Order entered June 4, 2008 In the Court of Common Pleas of Delaware County, Criminal No. CP-23-CR-0005176-2003.
The opinion of the court was delivered by: Fitzgerald, J.
BEFORE: BENDER, ALLEN, and FITZGERALD,*fn1 JJ.
¶ 1 Appellant, Jameen Warren, appeals from the order entered in the Delaware County Court of Common Pleas, dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. Appellant and counsel have also filed separate petitions to remand for appointment of new counsel. We hold that PCRA counsel may not justify his failure to argue certain issues by claiming those issues are without merit, and then argue broadly that an evidentiary hearing was warranted without specifying what issues merited a hearing. Accordingly, we vacate the order, dismiss Appellant's pro se petition, and grant counsel's petition to remand for the appointment of new counsel.
¶ 2 After a jury trial, Appellant was convicted of second-degree murder, three counts of robbery, robbery of a motor vehicle, and related charges. On November 21, 2005, Appellant was sentenced to life imprisonment for second-degree murder, and an aggregate term of twenty to forty years' imprisonment for the remaining charges. On direct appeal, this Court affirmed the judgment of sentence. Appellant did not seek allowance of appeal with the Pennsylvania Supreme Court.
¶ 3 On December 17, 2007, Appellant filed the instant PCRA petition, pro se. Current PCRA counsel was appointed on December 31, 2007, and Appellant filed an amended PCRA petition through counsel on January 31, 2008. On May 1, 2008, the PCRA court issued a notice of intent to dismiss Appellant's petition without a hearing. On June 4, 2008, the PCRA court dismissed the petition.
¶ 4 Appellant timely filed this appeal on June 26, 2008. After counsel filed a brief on Appellant's behalf on December 1, 2008, Appellant filed a pro se petition for remand on April 20, 2009, in which he challenged counsel's effectiveness, alleging that counsel's brief was incomplete. In an April 30, 2009 order, this Court instructed counsel to respond to Appellant's pro se petition to remand pursuant to Commonwealth v. Battle, 879 A.2d 266 (Pa. Super. 2005), and Commonwealth v. Lawrence, 596 A.2d 165 (Pa. Super. 1991). On May 28, 2009, counsel filed the instant application for remand, responding to Appellant's claim of ineffectiveness.
¶ 5 In Battle, this Court outlined the procedure for addressing pro se allegations of ineffective assistance of current counsel:
We begin by reviewing our well established procedures for handling documents filed pro se by represented appellants. These procedures are guided by our Supreme Court's holding that there is no constitutional right to hybrid representation, neither on appeal, nor at trial. [Commonwealth v.] Ellis, 534 Pa. [176,] 180, 626 A.2d [1137,] 1139 [(1993)]. When an appellant who is represented by counsel files a pro se petition, brief, or motion, this Court forwards the document to his counsel. 210 Pa.Code § 65.24; Ellis, 534 Pa. at 180, 626 A.2d at 1139. If the brief alleges ineffectiveness of appellate counsel, counsel is required to petition this Court for remand. Ellis, 534 Pa. at 180, 626 A.2d at 1139; Lawrence, 596 A.2d at 168. In the petition for remand, counsel must cite appellant's allegations of ineffectiveness and provide this Court with an evaluation of those claims. Commonwealth v. Blystone,  617 A.2d 778, 782 ([Pa. Super.] 1992); Lawrence, 596 A.2d at 168. This Court will then determine whether or not a remand for appointment of new counsel is required, based on our review of counsel's petition and the record. Blystone, 617 A.2d at 782; Lawrence, 596 A.2d at 168.
We stress that this Court does not review the pro se brief, but rather reviews counsel's analysis of the issues raised pro se. Blystone, 617 A.2d at 782; Lawrence, 596 A.2d at 168. The process has similarities to the procedures required of appointed counsel who seeks to withdraw from representing an appellant, based on a determination that the issues for appeal are totally frivolous. SeeAnders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (describing the requirements of an Anders brief, which must be filed when appointed counsel seeks to withdraw from a direct appeal based on a determination that the issues presented are wholly frivolous); Commonwealth v. Finley,  550 A.2d 213 ([Pa. Super.] 1988) (en banc) (describing the requirements of a Finleyletter, which must be filed when appointed counsel seeks to withdraw from a collateral appeal filed under the Post-Conviction Relief Act).
Battle, 879 A.2d at 268-69 (footnote omitted).
¶ 6 When counsel files a petition to remand for appointment of new counsel, "[i]n effect, counsel is seeking to withdraw from the claims he declines to raise on behalf of his client, and therefore should undertake an analysis similar to that he would employ if he were to file a Finley brief with this Court." Commonwealth v. Jette, 947 A.2d 202, 205 (Pa. Super. 2008). Thus, in his petition for remand, counsel must: (1) "list each claim the petitioner wishes to have reviewed, and detail the nature and extent of counsel's review of the merits of each of those claims[;]" and (2) "set forth... an explanation of why the petitioner's issues are meritless[.]" Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006).
¶ 7 Although we generally do not review pro se filings, we note that in his petition to remand, Appellant alleges counsel's brief was incomplete, and therefore counsel was ineffective. The pro se petition is vague in asserting exactly how the brief was incomplete, stating only: "The Brief submitted on said day is incomplete, thereby, making both the Brief and Appellate Counsel Ineffective by denying a meaningful appellate review by this Honorable Court." Pro se Petition for Remand, filed 4/20/09. Though Appellant's pro se petition fails to specify how the brief was incomplete, we infer, based on Appellant's amended PCRA petition and counsel's petition for remand, that Appellant objects to the brief because, although it includes the issues raised in the amended PCRA petition, it argues only, "[Did] the [PCRA] court [err] in denying [Appellant's] amended [PCRA] petition without allowing him the opportunity of an evidentiary hearing?" Appellant's Brief at 10. We agree with Appellant.
¶ 8 Appellant raised four issues in his amended PCRA petition: (1) trial counsel was ineffective for failing to file a pre-trial motion to suppress Appellant's statement; (2) trial counsel was ineffective for failing to file a pre-trial motion requesting a change of venue due to publicity; (3) trial counsel was ineffective for failing to employ the service of an expert to testify about the effects of crack cocaine in reference to Appellant's statement and actions; and (4) trial counsel was ineffective for failing to request a jury instruction which would have allowed the jury to weigh the voluntariness of the confession.*fn2 On appeal, ...