J-A13023-20

                                   2020 PA Super 167


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KYLE VO                                    :
                                               :
                       Appellant               :   No. 1422 EDA 2019

              Appeal from the PCRA Order Entered April 17, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0001077-2015


BEFORE:       BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

OPINION BY LAZARUS, J.:                                   FILED JULY 10, 2020

        Kyle Vo appeals from the order, entered in the Court of Common Pleas

of Delaware County, denying his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. For the reasons set

forth below, we vacate and remand.

        On the night of January 21, 2015, and into the morning of January 22,

2015, Vo, Marguerite Kane, and other students gathered in a dormitory at

West Chester University, and began drinking alcohol. As the night progressed,

Vo and Kane became increasingly intoxicated. At one point in the night, Kane

confided to the other students that she was a virgin, and she was waiting to

have sex with someone “very special” or until marriage.

        Later that night, Vo sat on Kane’s bed and began rubbing her thigh. At

that point, Kane was intoxicated and had difficulty processing what was
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A13023-20



occurring. Vo then moved Kane’s shorts and stuck his finger in Kane’s vagina,

at which point she felt pain and blacked out. When Kane awoke, she found

Vo on top of her with his penis in her vagina. Kane then lost consciousness

again, but later awoke. At that point, she realized that Vo was having sex

with her again, and again felt pain. Kane never consented to having sexual

intercourse with Vo.

       Maria Urban, another student who attended the dormitory gathering,

testified that she witnessed Vo having sex with Kane that night. Christopher

Burke, Vo’s roommate at the time, testified that on the morning of January

22, 2015, Vo made corroborating statements about having sex with Kane.

       The following day, Kane placed a phone call to Vo under police

supervision. During the recorded conversation, Vo made various incriminating

statements about his use of a condom on the night in question, as well as his

willingness to purchase “Plan B” or some other contraceptive for Kane. On

the Commonwealth’s motion, the trial court ruled to exclude from evidence

some of Kane’s statements in the recorded phone call. On April 20, 2016, a

jury convicted Vo of rape of an unconscious victim, aggravated indecent

assault without consent, sexual assault, indecent assault of an unconscious

person, and indecent assault without consent.1

       On July 18, 2016, the court sentenced Vo to four to ten years’

incarceration for his rape of an unconscious victim conviction, a consecutive
____________________________________________


118 Pa.C.S. §§ 3121(a)(3), 3125(a)(1), 3124.1, 3126(a)(4), and 3126(a)(1),
respectively.

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term of two to ten years’ incarceration for his aggravated indecent assault

conviction, and a consecutive term of five years’ probation for his indecent

assault of an unconscious person conviction, with no further penalty for his

other convictions.    The court required Vo to comply with the lifetime

registration   requirements    under      the   Pennsylvania   Sexual   Offender

Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10 et seq,

though Vo was not deemed to be a sexually violent predator under SORNA.

      On July 21, 2016, Vo’s trial counsel, Martin P. Mullaney, Esquire, filed a

notice of appeal.    In Vo’s direct appeal, his appellate counsel, Robert J.

Donatoni, Esquire, raised the following single claim:

      Whether the trial court erred by not permitting [Vo’s trial counsel,
      Attorney Mullaney,] the opportunity to cross-examine [] Kane
      about inconsistent statements she made during a wire intercept
      with [Vo] the afternoon after the incident where such exclusion of
      evidence violated [Vo’s] constitutional due process right to
      present      a      full  and      complete     defense       under
      the Fifth, Sixth[,] and Fourteenth Amendments of the United
      States Constitution and Article I, Section 9 of the Pennsylvania
      Constitution?

Appellant’s Direct Appeal Brief, at 3.

      In a two-to-one decision, a three-judge panel of this Court affirmed the

trial court’s judgment of sentence and held that Vo’s alleged error was

harmless. Commonwealth v. Vo, No. 2327 EDA 2016 (Pa. Super. filed Oct.

16, 2017) (unpublished memorandum).             Vo’s appellate counsel, Attorney

Donatoni, did not file a petition for allowance of appeal seeking further review.

Instead, on February 22, 2018, Vo, through Attorney Donatoni, filed a PCRA

petition.   The PCRA court determined that only one of Vo’s four PCRA

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allegations—that trial counsel, Attorney Mullaney, may have failed to provide

effective assistance in neglecting to advise Vo to testify at trial—merited an

evidentiary hearing. The court held a PCRA hearing on September 7, 2018,

and, on April 17, 2019, issued an order dismissing Vo’s PCRA petition. On

May 9, 2019, Attorney Donatoni filed a notice of appeal in this Court. Vo then

retained private counsel, and on May 23, 2019, Burton A. Rose, Esquire,

entered his appearance.

     On appeal, Vo, through Attorney Rose, raises the following five claims:

     1. Was [Vo] denied effective assistance of trial counsel by the
     failure to advance and preserve objections to prosecutorial
     misconduct in closing argument regarding [Kane’s] sexual activity
     [] that the defense had relied upon to create a reasonable doubt
     on the issue of consent? Should trial counsel have objected when
     the prosecutor argued to the jury [Kane’s] conduct in kissing [Vo]
     on the neck, hugging [Vo] around the shoulders and wrapping her
     legs around [Vo’s] waist could be explained as a natural, non-
     volitional response of a sexual assault victim?

     2. Was trial counsel ineffective in failing to call an expert witness
     to provide testimony to establish that [Kane’s] above conduct []
     was consistent with someone who was engaged in voluntary
     sexual contact with [Vo,] and not a person who was so intoxicated
     that she was acting involuntarily?

     3. Should trial counsel have called witnesses to establish that [Vo]
     had two hickeys on his neck, given to him by [Kane], including
     photographs of same, which suggested [Kane’s] voluntary and
     conscious participation in sexual activity?

     4. Was trial counsel ineffective in failing to cross-examine [Kane]
     regarding her having sent a text message at 2:36 A.M. on [Vo’s]
     telephone which showed her voluntary and close contact with [Vo]
     and her lack of intoxication at that critical time?

     5. Can the above claims be heard on this PCRA appeal if they were
     not raised in the PCRA court by prior counsel? Should the case be
     remanded to the lower court?

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J-A13023-20



Appellant’s Brief, 9/6/19, at 3-4.

        On June 27, 2019, Attorney Rose filed an application in this Court for a

remand for an evidentiary hearing to determine whether trial counsel,

Attorney Mullaney, was ineffective for failing to:          (1) object to the

prosecution’s closing argument regarding non-volitional responses; (2)

present an expert witness to testify about alcoholic blackouts; (3) cross-

examine Kane regarding a text message that was sent from Vo’s phone; and

(4) present expert testimony and photographs establishing that Kane gave Vo

two hickeys on his neck. See Appellant’s Application for Remand, 6/27/19,

at 1-7. Similarly, Vo’s remand application claims that Attorney Donatoni was

ineffective for failing to raise these issues before the PCRA court; thus, Vo

argued, a remand for a hearing on these issues was necessary. See id. This

Court denied Vo’s remand application without prejudice, permitting Vo to raise

it again in his brief before this Court, which Vo has done. See Appellant’s

Brief, 9/6/19, Exhibit E.

        In Commonwealth v. Jones, 815 A.2d 598 (Pa. 2002), our Supreme

Court considered claims raised under similar circumstances to those presented

here.    In Jones, the petitioner filed his first PCRA petition pro se.     The

petitioner’s attorney then filed an amended petition, which the PCRA court

dismissed.    After the filing of the petitioner’s notice of appeal, a second

attorney entered an appearance and filed a brief that contained a purported

second amended PCRA petition, which was never actually filed in the PCRA

court, and which included sixteen issues for review. The first issue was that

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J-A13023-20



the petitioner’s first PCRA counsel was ineffective for failing to raise the

succeeding fifteen issues before the appellate court on a collateral appeal.

None of the fifteen succeeding claims was raised or preserved in the PCRA

proceeding that was the subject of the appeal in that case. Consequently, our

Supreme Court ruled that any issues not previously raised were unreviewable.

In announcing the judgment of the Court, then-Justice Castille explained:

       Permitting new claims to be raised upon appeal, of course, is
       contrary to our general appellate practice. However, a recognized
       exception exists in criminal cases where new counsel represents
       the defendant on appeal.        In those instances, this Court’s
       precedent permits appellate courts to entertain claims that
       counsel in the trial court was ineffective, notwithstanding that the
       claims, of necessity, were not raised below. This exception to the
       general rule of issue preservation is a necessary consequence of
       this Court’s requirement that claims of ineffectiveness must be
       raised at the earliest possible stage in the proceedings at which
       counsel whose effectiveness is questioned no longer represents
       the defendant. Obviously, if new counsel is required to raise
       claims of predecessor counsel ineffectiveness upon appeal, upon
       pain of judicial waiver, the appellate court must be prepared to
       entertain those claims. Thus, as a matter of this Court’s appellate
       jurisprudence, a properly layered claim challenging PCRA
       counsel’s ineffectiveness would not be waived, and can be
       reviewed on appeal from the denial of the PCRA petition.

       [] There is some obvious tension between the PCRA amendments
       and our judicial rule requiring certain claims of PCRA counsel
       ineffectiveness to be raised for the first time on appeal. . . .
       Furthermore, this Court has noted that the question of the
       timeliness of a petition under the amended PCRA implicates the
       jurisdiction of this court to entertain the issue and, thus, the
       question may be raised by the Court sua sponte. Finally, in the
       non-Hubbard[2] context, this Court has declined to entertain new
____________________________________________


2 Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), which required
ineffective assistance of counsel claims be raised when a petitioner obtained



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J-A13023-20


       claims that would act to subvert the PCRA’s new time and serial
       petition restrictions:

          Permitting a PCRA petitioner to append new claims to the
          appeal already on review would wrongly subvert the time
          limitations and serial petition restrictions of the PCRA.

       [Commonwealth v. Bond, 819 A.2d 33, 52 (Pa. 2002)
       (citing Commonwealth v. Lark, 746 A.2d 585, 587-88 (Pa.
       2000)).]

       [] [A]ppellant’s new and distinct claims were first raised in an
       appellate brief filed on November 8, 1999, well over a year after
       appellant’s conviction became final in 1996. As a PCRA matter,
       then, these issues, not having been raised in the initial and
       amended petitions below, should properly be the subject of a
       second PCRA petition, which would be subject to the time
       limitation and serial petition restrictions contained in § 9545(b) of
       the PCRA. By reaching the merits of brand new claims never
       presented in the PCRA petition that was actually filed and is at
       issue    in   this     appeal, this     Court    arguably    employs
       the Hubbard doctrine in an unintended and improper fashion -
       - i.e., to provide an end-around the General Assembly’s
       unequivocal and jurisdictional restrictions upon serial post-
       conviction petitions.

Jones, 815 A.2d at 608-10 (internal citations, quotations, brackets, footnote

omitted; emphasis added).

       More recently, in Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super.

2014), this Court reviewed whether claims of ineffective assistance of PCRA

counsel may be raised for the first time on collateral appeal. Our decision in

Henkel outlined “the history of the right to collateral review counsel in

Pennsylvania and the concomitant right to effective representation.” Id. at

21.   In concluding that ineffective assistance of PCRA counsel claims raised

____________________________________________


new counsel or those claims were deemed waived, was overturned in
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).

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J-A13023-20



for the first time on appeal are unreviewable because they were not previously

raised before the PCRA court, we stated:

      The Pennsylvania Supreme Court[,] in [Commonwealth
      v. Jette, 23 A.3d 1032 (Pa. 2011),] held that claims of PCRA
      counsel ineffectiveness cannot be leveled for the first time on
      appeal, stating:

         we find that Appellee’s argument that in the PCRA context,
         given its serial petition and time-bar restrictions, he “must
         raise all claims of ineffective assistance of counsel at this
         stage ... or forever waive those claims,” Appellee’s brief at
         9, is contrary to this Court’s recent jurisprudence, which we
         realize was decided after the panel issued its decision in this
         case. See Commonwealth v. Colavita, [] 993 A.2d 874,
         893 n.12 (2010) (unanimous opinion) (“claims of PCRA
         counsel ineffectiveness may not be raised for the first time
         at the direct appeal level, much less at the discretionary
         appeal level.”) (citing Commonwealth v. Pitts, [] 981
         A.2d 875, 880 n.4 (2009)). The waiver of such claims,
         however, is not a foregone conclusion. While difficult, the
         filing of a subsequent timely PCRA petition is possible, and
         in situations where an exception pursuant to §9545(b)(1)(i-
         iii) can be established[,] a second petition filed beyond the
         one-year time bar may be pursued.             Moreover, if an
         appellant remains adamant that the claims foregone by
         counsel provide the better chance for success, he can avoid
         the potential loss of those claims by timely exercising his
         desire to self-represent or retain private counsel prior to the
         appeal.

      Jette, supra at 1044 n.14[ (emphasis added).]

      As noted, in Jette[,] the PCRA court did not file a notice of intent
      to dismiss because it held a hearing. However, the Jette Court
      did not distinguish Pitts on that ground and signaled
      that Colavita was binding precedent on the issue of whether a
      claim of PCRA counsel ineffectiveness could be raised for the first
      time on appeal.

Henkel, supra at 27-28. Also, with regard to the filing of a notice of appeal

in this Court, we have held that “absent recognition of a constitutional right


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J-A13023-20



to effective collateral review counsel,[3] claims of PCRA counsel ineffectiveness

cannot be raised for the first time after a notice of appeal has been taken from

the underlying PCRA matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201

(Pa. Super. 2012). See also Commonwealth v. Grant, 813 A.2d 726, 738

(Pa. 2002) (in overruling Hubbard rule requiring ineffective assistance of

counsel claims be raised when petitioner obtains new counsel or those claims

will be deemed waived,          Supreme Court held that, “as a general rule, a

petitioner should wait to raise claims of ineffective assistance of trial counsel

until collateral review. Thus, any ineffectiveness claim will be waived only

after a petitioner has had the opportunity to raise that claim on collateral

review and has failed to avail himself of that opportunity.”)

        Here, Vo’s PCRA petition included four layered ineffectiveness of trial

counsel claims: (1) failure to call Dr. David Manion as an expert witness on

hickeys; (2) failure to introduce Kane’s prior statements; (3) failure to
____________________________________________



3
    Our Supreme Court has previously stated,

        [although] a PCRA petitioner does not have a Sixth Amendment
        right to assistance of counsel during collateral review, this
        Commonwealth, by way of procedural rule, provides for the
        appointment of counsel during a [petitioner’s] first petition for
        post[-]conviction relief. Pursuant to our procedural rule, not only
        does a PCRA petitioner have the “right” to counsel, but also he
        has the “right” to effective assistance of counsel. The guidance
        and representation of an attorney during collateral review should
        assure that meritorious legal issues are recognized and addressed,
        and that meritless claims are foregone.

Commonwealth v. Haag, 809 A.2d 271, 282-83 (Pa. 2002) (internal
citations and quotation marks omitted).

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J-A13023-20



introduce evidence on constitutional grounds; and (4) failure to advise Vo of

his right to testify. On appeal, Vo abandons all but the first claim raised in his

petition, and, instead, raises four additional ineffectiveness claims. The four

additional claims are:        (1) failing to object to the prosecutor’s closing

argument; (2) failing to present an expert witness, Dr. Elliot Atkins, about

alcoholic blackouts; (3) failing to cross-examine Kane about a text message;

and (4) a request for a remand for a second evidentiary hearing. Similar to

the PCRA petitioner in Jones, Vo’s four new claims were first raised in his

appellate brief, which he filed on September 6, 2019. Vo raises these claims

well over one year after his conviction became final in 2017. Consequently,

these claims are properly the subject of a second PCRA petition. See Jones,

supra. Thus, these claims cannot be reviewed by this Court in the instant

appeal—a review of Vo’s first PCRA petition.

       Vo’s brief attempts to distinguish his case from Pitts and Ford, claiming

he had no prior opportunity to raise these ineffective assistance of counsel

claims before the trial court. He reasons further that because there was no

notice pursuant to either Pa.R.Crim.P. 907 or a Turner/Finley2 letter, he was

not afforded an opportunity to respond.            See Appellant’s Brief, at 20.   Vo

concludes that,

____________________________________________


2  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (established
procedure for withdrawal of court-appointed counsel in collateral attacks on
criminal convictions); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc) (same).


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J-A13023-20


      if [Vo’s] claims of PCRA counsel ineffectiveness were deemed
      waived because they were not raised at the PCRA level, such a
      result would render any effective enforcement of the rule-based
      right to effective PCRA counsel a nullity because then there would
      be no state–level redress for deficient PCRA counsel’s
      performance.

Id. at 22 (emphasis added).

      Indeed, following the PCRA court’s denial of his petition, Vo filed a notice

of appeal in this Court, albeit through prior counsel, Attorney Donatoni.

Contrary to Vo’s claims, Vo did have an opportunity to raise these ineffective

assistance of counsel claims by “timely exercising his desire to self-represent

or retain private counsel prior to the [PCRA] appeal.”       See Jette, supra.

Rather, Vo elected to remain represented by Attorney Donatoni throughout

the pendency of his direct appeal and throughout the trial court’s PCRA

proceedings. Also, as we have previously noted in Henkel, “the Jette Court

[] signaled that Colavita[, a unanimous opinion,] was binding precedent on

the issue of whether a claim of PCRA counsel ineffectiveness could be raised

for the first time on appeal.” Henkel, 90 A.3d at 28. We then stated that our

Supreme Court found that, “a PCRA petitioner cannot assert claims of PCRA

counsel ineffectiveness for the first time on appeal, regardless of whether

a [Pa.R.Crim.P. 907] or 909 notice is involved.” Id. Here, we do not find Vo’s

distinguishing of Ford and Pitts persuasive. Rather, we will continue to follow

the holdings of Ford, Colavita, and Henkel, supra.

      Vo also claims that, because he did not receive notice of the PCRA

court’s intent to dismiss his petition, pursuant to Pa.R.Crim.P. 907, he is

entitled to a remand. See Appellant’s Brief, at 22. We agree, in part. Vo

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J-A13023-20



relies on our decision in Commonwealth v. Rykard, 55 A.3d 1177 (Pa.

Super. 2012), for the proposition that,

      the purpose of [] Rule 907 [n]otice is to allow the [p]etitioner an
      opportunity to correct any material defects in his submission to
      the PCRA court [and] the petitioner’s response to the Rule 907
      [n]otice is his opportunity to object to the dismissal and to alert
      the PCRA court of an error that could be corrected and to object
      to counsel’s effectiveness at the PCRA level.

Appellant’s Brief, at 22.

      Rule 907 of the Pennsylvania Rules of Criminal Procedure provides as

follows, in pertinent part:

      Except as provided in Rule 909 for death penalty cases, (1) the
      judge shall promptly review the [PCRA] petition, any answer by
      the attorney for the Commonwealth, and other matters of record
      relating to the defendant’s claim(s). If the judge is satisfied from
      this review that there are no genuine issues concerning any
      material fact and that the defendant is not entitled to post-
      conviction collateral relief, and no purpose would be served by any
      further proceedings, the judge shall give notice to the parties of
      the intention to dismiss the petition and shall state in the notice
      the reasons for the dismissal. The defendant may respond to the
      proposed dismissal within 20 days of the date of the notice. The
      judge thereafter shall order the petition dismissed, grant leave to
      file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907. This Court has held that the notice in the predecessor to

Rule 907 (former Rule 1507) is mandatory. See Commonwealth v. Guthrie,

749 A.2d 502, 503 (Pa. Super. 2000). Further, our Supreme Court previously

held that advance notice of intention to dismiss in former Rule 1507 was

required “when the PCRA court dismisses the petition without an evidentiary

hearing, regardless of whether the petitioner has been permitted to respond




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J-A13023-20



to the Commonwealth’s arguments.” Commonwealth v. Morris, 684 A.2d

1037, 1046 (Pa. 1996). More recently, we noted that,

     [t]he purpose of a Rule 907 pre-dismissal notice is ‘to allow a
     petitioner an opportunity to seek leave to amend his petition and
     correct any material defects, the ultimate goal being to permit
     merits review by the PCRA court of potentially arguable
     claims.’ Commonwealth v. Rykard, [] 55 A.3d 1177, 1189 (Pa.
     Super. 2012)[.] The response to the Rule 907 notice ‘is an
     opportunity for a petitioner and/or his counsel to object to the
     dismissal and alert the PCRA court of a perceived error, permitting
     the court to discern the potential for amendment.’ Id. The
     response is also the opportunity for the petitioner to object to
     counsel’s effectiveness at the PCRA level. Id. When a PCRA court
     properly issues Rule 907 notice in compliance with the rules of
     criminal procedure, an appellant is deemed to have sufficient
     notice of dismissal. Commonwealth v. Ousley, [] 21 A.3d 1238,
     1246 (Pa. Super. 2011)[.]

Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa. Super. 2015)

(emphasis added). With regard to the timing of the notice, we have held that,

“service of any notice of dismissal, whether in the form of a Rule 907 notice

by the court, or a Turner/Finley no-merit letter, must occur at least twenty

days prior to an official dismissal order.” Commonwealth v. Hopfer, 965

A.2d 270, 275 (Pa. Super. 2009). In Commonwealth v. Bond, 630 A.2d

1281 (Pa. Super. 1993), we held that the PCRA court’s dismissal without

(former Rule 1507) notice did not require a remand where the dismissal

occurred more than 20 days after the petitioner received counsel’s

Turner/Finley letter. In that case, we declined to remand for entry of

notice because    counsel    and    the     court   “scrupulously”   followed

Turner/Finley procedure. Id. at 1283.



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J-A13023-20



       Here, the PCRA court did not issue Vo notice of its intent to dismiss his

PCRA petition without a hearing, as is required pursuant to Rule 907. See

Pa.R.Crim.P. 907(1).       Additionally, for reasons beyond our knowledge, our

appellate court docket lists Attorney Donatoni as the lead attorney of record,

in addition to Attorney Rose’s representation. Moreover, our docket reveals

that on May 23, 2019, Attorney Rose submitted a letter to this Court entering

his appearance as private counsel, and requesting that the name of “former

counsel,” Attorney Donatoni, be removed. See Entry of Appearance, 5/23/19,

at 1. The circumstances of Attorney Donatoni’s termination of representation

are unknown to us; we can find no Turner/Finley letter in the record.

Because there is no evidence of a Turner/Finley letter and the court did not

issue Rule 907 notice, we must vacate and remand.3       Rule 907 notice gives

Vo the opportunity to “alert the PCRA court of a perceived error [and] to object

to counsel’s effectiveness at the PCRA level.”           See Smith, supra.

Accordingly, we remand for proper issuance of notice of the PCRA court’s

intent to dismiss Vo’s petition, which the trial court shall issue within twenty

days of this decision. See id. Upon receipt of the court’s Rule 907 notice, Vo

shall have twenty days to file with the PCRA court his reasons for objecting to

dismissal of his petition. The PCRA court shall then proceed accordingly. See

Hopfer, supra.



____________________________________________


3 We order that Attorney Donatoni immediately file a motion in the trial court
to withdraw his representation in this matter.

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      Order vacated. Case remanded for further proceedings consistent with

this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/20




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