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
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* Retired Senior Judge assigned to the Superior Court.
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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
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1 18 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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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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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
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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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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 postconviction 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
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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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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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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
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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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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,
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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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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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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 postconviction 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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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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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.
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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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