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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
EDWIN WALKER,
:
Petitioner
::
v.
:
No. 1005 C.D. 2000
:
Submitted: November 17, 2000
PENNSYLVANIA BOARD OF
:
PROBATION AND PAROLE,
:
Respondent
:
BEFORE: HONORABLE DAN PELLEGRINI, Judge
HONORABLE JIM FLAHERTY, Judge
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION
BY JUDGE FLAHERTY
FILED: April 18, 2001
This matter is on pro se Petition for Review of the denial of
administrative relief by the Pennsylvania Board of Probation and Parole (Board).
Petitioner, Edwin Walker, was sentenced to a term of imprisonment
for life following his conviction for first-degree murder. He received a
commutation, which resulted in a modified sentence of sixteen (16) years, seven
(7) months and sixteen (16) days to life effective July 30, 1957. Mr. Walker was
re-paroled from that sentence on December 29, 1987. The parole was subject to
general and specific conditions. On November 14, 1996, the City of Philadelphia
Police Department arrested Mr. Walker on new criminal charges. These charges
were subsequently dismissed, however, the Board lodged a detainer against him
based upon a technical violation of parole. Agents of the Pennsylvania Attorney
General subsequently arrested Mr. Walker in Luzerne County. After detention and
final violation hearings, Mr. Walker was detained pending disposition of the

Luzerne County charges.1 Following a November 2, 1998 revocation hearing on
the technical parole violation, Mr. Walker was recommitted based upon the
decision of the Board mailed on January 22, 1999. On November 10, 1999, after a
hearing, the Board revoked Mr. Walker's parole on the basis of his September 29,
1999 convictions. By decision mailed on March 6, 2000, the Board ordered him
recommitted as a convicted parole violator based upon evidence of his September
29, 1999 convictions.
Mr. Walker filed an administrative appeal with the Board raising a
defense to the charge that he had violated the technical terms of his parole by
receiving new convictions. The Board received this appeal on March 17, 2000.
On April 4, 2000, the Board received a second/supplemental administrative appeal
from Mr. Walker requesting relief from the decision of the Board mailed on March
6, 2000. The subject of these administrative appeals, however, was the prior
violation hearing of November 2, 1998, and the subsequent recommitment Order
mailed on January 22, 1999, based upon the technical parole violation. By way of
a response mailed on April 14, 2000, the Board denied the administrative appeal of
March 17, 2000, and dismissed the administrative appeal of April 4, 2000.
In his Petition for Review, Mr. Walker essentially argues the
following:
1) The Board improperly imposed backtime for a technical
parole violation based upon an act constituting a new crime
of which he was convicted. Rivenbark v. Pennsylvania
Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110

1 Petitioner was convicted by a jury of two counts of possession with intent to deliver
heroin and cocaine and two counts of delivery of heroin and cocaine on September 29, 1999, for
which he received a total aggregate sentence of eight to sixteen years' imprisonment.
2

(1985). Furthermore, Mr. Walker did not waive this issue
because he was represented by ineffective counsel.
2) The Board erroneously dismissed Mr. Walker's
"supplemental appeal" which alleges the revocation hearing
was untimely.
Petition for Review at 3-4, ¶¶ 16-17.
On August 14, 2000, citing Commonwealth v. Turner, 518 Pa. 491,
544 A.2d 927 (1988), appointed counsel (Counsel) filed a "no-merit" letter seeking
leave to withdraw its appearance as Mr. Walker's counsel. Before this Court will
consider Counsel's request, the "no-merit" letter must first fully comply with the
procedures outlined in Turner:
"The 'no-merit' letter must contain (1) the nature and
extent of the counsel's review, (2) the issues petitioner
wishes to raise, and (3) counsel's analysis in concluding
petitioner's appeal to be frivolous." Epps v. Pennsylvania
Board of Probation and Parole, 565 A.2d 214, 216 (Pa.
Cmwlth. 1989) (citing, Commonwealth v. Turner, 518
Pa. 491, 494, 544 A.2d 927, 928 (1988)). Counsel has
discharged their responsibility if they allege that the
appeal is meritless, an allegation of frivolous appeal is
not required. Frankhouser v. Pennsylvania Board of
Probation and Parole, 598 A.2d at 607, 608 (Pa. Cmwlth.
1991).
Hont v. Pennsylvania Board of Probation and Parole, 680 A.2d 47, 48 (Pa.
Cmwlth. 1996); Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d
355, 356 (Pa. Cmwlth. 1992). "The Court does not reach an examination of the
merits of [Mr. Walker's] appeal until it is satisfied that counsel has discharged its
responsibility in complying with the technical requirements of ... a no-merit
letter." Wesley, 614 A.2d at 356.
Counsel's no-merit letter is defective because it fails satisfy two of the
three Turner elements. First, Counsel does not address all of the allegations raised
3

by Mr. Walker in his Petition for Review. Mr. Walker contends that his
"supplemental appeal" was timely and is not a "second appeal". Petition for
Review at 3, ¶ 17. In this supplemental request for administrative relief Mr.
Walker alleges he did not receive a timely revocation hearing. C.R. at 52. We do
not believe this omission is harmless because a failure to address this procedural
issue can be fatal to consideration of substantive issues. Therefore, we conclude
that Counsel's no-merit letter fails to include all of the issues raised by Mr.
Walker.
This is not the only defect that precludes our review. To comply
with the third Turner requirement, Counsel must have a substantive reason for
concluding that Mr. Walker's claims are meritless. Hill v. Pennsylvania Board of
Probation and Parole, 707 A.2d 1214 (Pa. Cmwlth. 1998). As we stated to Counsel
in Hill:
Here, however, Counsel's letter lacks any analysis of the
merits of the issues raised by Hill. Instead, Counsel
merely states in his letter that he has conducted an
"exhaustive examination of the certified record and
research of applicable case law," (Counsel's Letter,
September 16, 1997), and concluded that Hill's appeal
has no basis in law or fact and is, therefore, frivolous.
Counsel's lack of any substantive analysis of Hill's claims
or explanation as to why these claims are frivolous is
evidence that Counsel's no-merit letter is defective.
Although we do not encourage or condone the pursuit of
frivolous challenges, we will not tolerate the compromise
of an individual's right to representation on appeal.
Accordingly, because Counsel's no-merit letter is
defective, we deny Counsel's petition to withdraw from
representation of Hill. Furthermore, until Counsel
complies with the requirements of Turner, we will not
carry out an independent examination of the merits of
Hill's appeal.
4

Hill, 707 A.2d at 1216.2
The only resemblance to a substantive analysis that Counsel provides
for Mr. Walker's first argument is the following sentences: "As to Petitioner's
contention that the Board erred by sentencing Mr. Walker once as a technical
violator and once as a convicted parole violator counsel has reviewed the law and
the record. Specifically, counsel has reviewed Rivenbark v. Pennsylvania Board of
Probation and Parole, 509 Pa. 248, 501 A.2d 1101 [sic] (1985)." These statements,
with nothing more, do not satisfy the Turner requirement Counsel analyze the
merits of Mr. Walker's arguments.
Accordingly, we conclude that appointed counsel has not discharged
his responsibility under the requirements of Turner. This defect requires that we
deny the petition to withdraw. This Court shall not embark upon an independent
examination of the merits of Mr. Walker's appeal until such time as Counsel
complies with the requirements of Turner or submits a brief on the merits.
Appointed counsel's petition for leave to withdraw as Counsel is denied.3 Counsel

2 See also Pierce v. Pennsylvania Board of Probation and Parole, 688 A.2d 754 (Pa.
Cmwlth. 1997); Vandermark v. Pennsylvania Board of Probation and Parole, 685 A.2d 628 (Pa.
Cmwlth. 1996).
3 Mr. Walker submitted a brief on the merits while this Court was considering the no-merit
letter. His pro se brief does not render the no-merit letter moot. On August 16, 2000, the Court
ordered that while it was considering Counsel's Petition to Withdraw, Mr. Walker may either obtain
substitute counsel at his own expense or file a brief on his behalf. On September 6, 2000, Counsel
sent a copy of the Order to Mr. Walker with the cover letter characterizing the Order as a directive
to Mr. Walker to either obtain substitute counsel at his own expense or file a brief on his behalf.
This may explain why Mr. Walker filed his own brief.
The record/file contains no evidence that Mr. Walker fired Counsel and we cannot conclude
that Mr. Walker's pro se brief on the merits is a de facto termination because Counsel's cover letter
may have misled Mr. Walker into believing that the Court ordered him to enlist other counsel or file
(Footnote continued on next page...)
5

is granted thirty (30) days to either submit a brief on the merits of Mr. Walker's
appeal or re-file a no-merit letter in accordance with Commonwealth v. Turner,
518 Pa. 491, 544 A.2d 927 (1988).

JIM FLAHERTY, Judge

(continued...)
a brief. In this matter, Counsel's Petition to Withdraw is not granted so Mr. Walker's brief will
remain pending until the attorney-client relationship is properly terminated.
6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
EDWIN WALKER,
:
Petitioner
::
v.
:
No. 1005 C.D. 2000
:
PENNSYLVANIA BOARD OF
:
PROBATION AND PAROLE,
:
Respondent
:
O R D E R
AND NOW, this 18th day of April, 2001, the application of appointed
counsel for leave to withdraw as Edwin Walker's counsel of record is hereby
denied without prejudice. Counsel of record is granted thirty (30) days from the
date of this order to either submit a brief on the merits of Mr. Walker's appeal or
re-file a no-merit letter in accordance with Commonwealth v. Turner, 518 Pa. 491,
544 A.2d 927 (1988).

JIM FLAHERTY, Judge