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[U] Commonwealth v. Pennock

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MARC A. PENNOCK, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered August 30, 2010, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0408401-2006.

BEFORE: FORD ELLIOTT, P.J.E., BENDER and SHOGAN, JJ.

MEMORANDUM

SHOGAN, J.

This matter is again before this Court following remand. Appellant, Marc A. Pennock, appeals nunc pro tunc from the order entered on August 30, 2010, dismissing his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The background of this matter was previously set forth by a panel of this Court as follows:

On January 5, 2006 at approximately 9:00 p.m., Allen Phillips was driving a cab and picked up Pennock and Marcus Dicks. The two men entered the cab with shopping bags. Dicks told Phillips to take them to Greene and Duval Streets in Philadelphia. When Phillips arrived at the location, Dicks instructed Phillips to drive behind a high-rise apartment building because "that's where the VIP's go in at." Phillips drove behind the building. When he turned to the passengers to collect the cab fare, he saw that Dicks had a gun pointed a foot away from his head. Dicks ordered Phillips to turn over all of his money and Phillips gave him $60.00.
While Dicks was yelling at Phillips, Pennock got out of the car and opened the driver's door. Pennock, with knife in hand, ordered Phillips out of the car. Phillips got out of the car and told Pennock to look up at the windows because people were watching them from above. Phillips then put his hand in his jacket and pretended to be retrieving a weapon. Pennock started to run away. Dicks started to shoot towards Phillips, who hid behind a car. Dicks fired four shots and ran away. Once both assailants had left the scene, Phillips returned to his cab and called his dispatcher, who then called the police.
Officer Jason Branyan received a report of a robbery in the area of his patrol. He saw two males, Pennock and Dicks, who matched the radio description walking about three blocks from the scene of the robbery. As Officer Branyan approached the men he saw Pennock go to a tree and place a dark-colored object next to the tree and then continue walking with Dicks. Officer Branyan asked the two men to stop. He patted down Dicks and found $60.00. A back-up officer went to the tree where Pennock left the dark object and retrieved a gun. A knife was also recovered from Pennock's person. Phillips positively identified Pennock and Dicks as the men who robbed him.
On January 5, 2006 Pennock was charged with attempted murder, criminal conspiracy, aggravated assault, robbery, violations of the Uniform Firearms Act (VUFA) and related charges. At the preliminary hearing, the Philadelphia Municipal Court discharged the attempted murder charge for lack of evidence. The Commonwealth held all the charges, including attempted murder, for trial.
On February 1, 2007, Pennock moved to suppress the identification and the physical evidence, which was denied by the trial court. Before proceeding to a non-jury trial, Pennock's attorney, in an oral motion immediately before trial, moved to quash the attempted murder bill and the trial court denied the motion. Pennock was acquitted of terroristic threats and one VUFA charge and was convicted on all other charges. On April 2, 2007, Pennock was sentenced to 9 to 18 years' imprisonment on the aggravated assault charge and a concurrent 9 to 18 years on the criminal conspiracy charge. The trial court imposed no further penalty for the remaining charges. Pennock timely appealed.

Commonwealth v. Pennock, 953 A.2d 836, 1119 EDA 2007 (Pa.Super. 2008) (unpublished memorandum). On March 31, 2008, this Court vacated Appellant's attempted murder conviction and affirmed the balance of his judgment of sentence. Id. On September 17, 2008, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Pennock, 960 A.2d 839 (Pa. 2008).

On June 9, 2009, Appellant filed a pro se PCRA petition, and counsel was appointed. Counsel filed a Turner/Finley[1] letter on December 18, 2009, stating that Appellant's claims were meritless, and on July 12, 2010, the PCRA court notified Appellant of its intent to dismiss the PCRA petition within twenty days pursuant to Pa.R.Crim.P. 907. Nine days later, Appellant filed his objections to counsel's petition to withdraw and the Pa.R.Crim.P. 907 notice. On January 20, 2011, Appellant filed a pro se petition with the PCRA court, and on April 11, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss that petition as untimely. On April 26, 2012, Appellant filed a response to the Pa.R.Crim.P. 907 notice. Response, 4/26/12, at 3-5. Therein, Appellant argued that this second petition was not untimely because he never received the PCRA court's order dismissing the first PCRA petition. Id. On May 16, 2012, the PCRA court granted Appellant leave to appeal nunc pro tunc from the order denying his first PCRA petition, and on May 31, 2012, Appellant filed his appeal.

In a memorandum filed on March 26, 2013, we concluded that there was no indication in the record that Appellant was afforded notice that his counseled PCRA petition was denied or that counsel had been permitted to withdraw. Commonwealth v. Pennock, 69 A.3d 1301, 1607 EDA 2012 (Pa.Super. 2013) (unpublished memorandum). Additionally, we were unable to determine what review Appellant's counseled PCRA petition received and whether counsel was permitted to withdraw or should have been permitted to withdraw. Id. Accordingly, we remanded this case to the PCRA Court. Id. In ...


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