from the PCRA Order June 18, 2015 In the Court of Common
Pleas of Luzerne County Criminal Division at No.:
BEFORE: STABILE, J., DUBOW, J., and PLATT, J. [*]
Lamont Cherry, appeals from the Order entered in the Luzerne
County Court of Common Pleas dismissing his first Petition
filed under the Post Conviction Relief Act
("PCRA"), 42 Pa.C.S. §§ 9541-9546. After
careful review, we vacate and remand for further proceedings.
convicted Appellant of Third-Degree Murder in the death of
one-year-old Zalayia McCloe. On December 21, 2011, the trial
court imposed a term of 20 to 40 years' imprisonment.
Appellant filed a direct appeal raising one evidentiary issue
related to police officer testimony. This Court affirmed
Appellant's Judgment of Sentence on July 12, 2013.
See Commonwealth v. Cherry, No. 245 MDA 2012 (Pa.
Super. filed July 12, 2013). Appellant did not file a
Petition for Allowance of Appeal with our Supreme Court. His
Judgment of Sentence, therefore, did not become final until
August 12, 2013. See 42 Pa.C.S. § 9545(b)(3);
28, 2014, the PCRA court appointed Jeffrey Yelen, Esquire
("Attorney Yelen") as PCRA counsel. On June 4,
2014, Appellant filed the instant pro
se PCRA Petition, his first, averring, inter
alia, that his trial counsel had been ineffective. The
Commonwealth filed a Response Brief on August 11, 2014,
responding to each of Appellant's claims raised in his
pro se PCRA Petition.
Yelen did not file an Amended PCRA Petition, and he did not
seek to withdraw pursuant to Turner/Finley.
Instead, Attorney Yelen appeared at a brief hearing on
January 16, 2015, at which Appellant agreed not to present
any evidence and submitted his case to the PCRA court on the
basis of his pro se pleadings alone. On June 18,
2015, the PCRA court denied Appellant's PCRA Petition.
Appellant filed a timely Notice of Appeal. The PCRA court
appointed Attorney Kelly to represent Appellant on
appeal. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
15, 2016, Attorney Kelly filed a
Turner/Finley no-merit letter identifying
I. Whether trial counsel was ineffective in failing to hire
II. Whether the trial court should have recused herself.
III. Whether the Commonwealth was guilty of prosecutorial
IV. Whether the double jeopardy clause of the Fifth Amendment
should have prevented the Commonwealth from retrying the
Defendant after a mistrial was ...