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Commonwealth v. Cherry

Superior Court of Pennsylvania

February 6, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
LAMONT CHERRY, Appellant

         Appeal from the PCRA Order June 18, 2015 In the Court of Common Pleas of Luzerne County Criminal Division at No.: CP-40-CR-0003610-2009

          BEFORE: STABILE, J., DUBOW, J., and PLATT, J. [*]

          OPINION

          DUBOW, J.

         Appellant, 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.

         A jury 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.[1] See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113.

         On May 28, 2014, the PCRA court appointed Jeffrey Yelen, Esquire ("Attorney Yelen") as PCRA counsel. On June 4, 2014[2], 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.[3]

         Attorney 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.[4] Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

         On June 15, 2016, Attorney Kelly filed a Turner/Finley no-merit letter identifying seven issues:

I. Whether trial counsel was ineffective in failing to hire an investigator.
II. Whether the trial court should have recused herself.
III. Whether the Commonwealth was guilty of prosecutorial misconduct.
IV. Whether the double jeopardy clause of the Fifth Amendment should have prevented the Commonwealth from retrying the Defendant after a mistrial was ...

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