A blog of the Philadelphia Bar Association’s Criminal Justice Section

Supreme Court PABy Burt Rose

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In COMMONWEALTH of Pennsylvania v. Jesus Rosario TORRES, Petitioner, 2014 WL 4810829, 187 MAL 2014 (Sept. 29, 2014), the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal from an unpublished Memorandum and Order of the Superior Court, No. 1160 EDA 2013 filed December 4, 2013, affirming an Order of the Pike County Court of Common Pleas, CP–52–CR–0000286–2008.The Order of the Superior Court was VACATED and the matter was REMANDED to the PCRA court with direction that counsel be appointed to assist Petitioner in a limited evidentiary hearing.

Counsel had been appointed and was granted leave to withdraw after filing a PCRA no merit letter. After the PCRA court entered a notice of intention to dismiss pursuant to Pa.R.Crim. P. 907, the Petitioner filed a pro se pleading styled as an amended PCRA petition, timely raising two new claims. The PCRA court granted an evidentiary hearing on these claims. The petitioner requested the appointment of new counsel for purposes of that hearing but the court denied that request.  The PCRA petition was then denied, in part due to Petitioner’s failure to support his claims. A divided Superior Court panel affirmed, over the dissent of Judge Fitzgerald, on the question of the entitlement to counsel at an evidentiary hearing that had been ordered by the PCRA court.

In a Per Curiam Opinion, the Supreme Court held that once an evidentiary hearing was ordered on the claims raised in a timely amended PCRA petition, the Petitioner was entitled to counsel under the Rules, which dictate that counsel should have been appointed. See Pa.R.Crim.P. 904(D) (providing for appointment of counsel for indigent defendant with respect to second or subsequent PCRA petition where evidentiary hearing is required) and Pa.R.Crim.P. 908(C) (providing that upon scheduling hearing, court shall provide defendant an opportunity for counsel).

Please note that although the PCRA court was not specifically asked to permit the amendment filed by the Petitioner, the Court stated that since the amendment was filed within the one-year window contemplated by the PCRA, and the PCRA court specifically entertained the amendment on the merits by scheduling an evidentiary hearing on the claims raised therein, “the hearing procedures contemplated by the Rules, including appointment of counsel, were implicated.”

So does this mean that if a PCRA amendment is filed without the formal approval of the lower court, but that court proceeds to entertain it as though it had been allowed, there should be no waiver arising from the Petitioner’s failure to seek such allowance?

I would like to point out that the Supreme Court emphasized that the amendment was itself timely, even though that is not a requirement under Rule 907. Therefore, I wonder if the result would have been different if the amendment had been filed (without the PCRA court’s approval) outside the one year deadline for filing the initial petition.


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