NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

COMMONWEALTH OF PENNSYLVANIA 

: 
: 
: 
: 
: 
: 
NGEL MIGUEL MUNOZ-RODRIGUEZ       
: 
: 
: 

Appellant 

    A

v. 

     

   

 

 

 

Appeal from the PCRA Order Entered January 19, 2022 
In the Court of Common Pleas of Adams County Criminal Division at 
No(s):  CP-01-CR-0000334-2020 

 No. 285 MDA 2022 

EFORE:  PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J. 

MEMORANDUM BY BENDER, P.J.E.:        FILED: MARCH 21, 2023 

 

Angel  Miguel  Munoz-Rodriguez,  Appellant,  appeals  from  the  order 

dismissing  his  first,  timely  petition  for  relief  filed  under  the  Post  Conviction 

Relief  Act  (“PCRA”),  42  Pa.C.S.  §§  9541-9546.    Appellant’s  second  court-

appointed counsel,  Jamison Entwistle,  Esq., has filed a petition  to withdraw 

and accompanying brief pursuant to Turner/Finley,1 and Appellant has filed 

a  pro  se  brief.    We  vacate  the  PCRA  court’s  order  and  remand  for  the 

appointment of new counsel.  

 

The  PCRA  petition  concerned  Appellant’s  guilty  plea  to  one  count  of 

failing to register as a sex offender, for which Appellant received a negotiated 

sentence of 27 to 60 months of incarceration.  The parties have framed the 

issue as whether the Pennsylvania State Police (“PSP”) correctly determined 

____________________________________________ 

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

 

 

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that  Appellant  must  register  as  a  sexual  offender  for  life.    The  basis  for 

Appellant’s Sexual Offenders Registration and Notification Act (“SORNA”), 42 

Pa.C.S.  §§  9799.51-9799.75,  obligations  is  Appellant’s  plea  in  Maryland  on 

August 7, 2003, to what Maryland describes as a sexual offense in the third 

degree.  Appellant pled guilty to the subsection criminalizing  “engag[ing] in 

sexual contact with another if the victim is under the age of 14 years, and the 

person  performing  the  sexual  contact  is  at  least  4  years  older  than  the 

victim[.]”  Md. Code Ann., Crim. Law § 3-307.  The factual basis for his plea 

was  that  Appellant  inserted  his  fingers  into  a  twelve-year  old’s  vagina.  

Appellant  received  a  sentence  of  time  served  and  two  years  of  supervised 

probation.  Turner/Finley Brief at 18.      

Appellant  moved  to  Pennsylvania  sometime  in  2004,  and  the  PSP 

determined that Appellant’s Maryland conviction required him to register as a 

sexual offender with the PSP for life.  Appellant was arrested on February 11, 

2020, for failing to register as required.  On  November 10, 2020, Appellant 

entered  a  plea  to  one  count  of  failing  to  comply  with  the  registration 

requirements imposed under Subchapter I of SORNA, pursuant to 18 Pa.C.S. 

§  4915.2.    Specifically,  Appellant  was  convicted  of  violating  the  following 

provision: 

is  subject  to 
(a)  Offense  defined.--An 
registration under 42 Pa.C.S. § 9799.55(a), (a.1) or (b) (relating 
to registration) or  who was subject to registration under former 
42 Pa.C.S. § 9793 (relating to registration of certain offenders for 
ten years) commits an offense if the individual knowingly fails to: 

individual  who 

***  

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(2) verify the individual’s residence or be photographed as 
required under 42 Pa.C.S. § 9799.60 (relating to verification 
of residence); …. 

18 Pa.C.S. § 4915.2(a)(2).   

 

Section  9799.55(b)  provided  the  basis  for  Appellant’s  registration 

obligations.    That  subsection  mandates  lifetime  reporting  obligations  for 

individuals  convicted  in  this  Commonwealth  of  five  offenses,  including 

aggravated indecent assault.  42 Pa.C.S. § 9799.55(b)(2)(i)(A).  This lifetime 

period of registration also applies to offenders who were convicted “of offenses 

similar to the crimes cited  in subparagraph (i) under the laws of … another 

state[.]”  42 Pa.C.S. § 9799.55(b)(2)(ii).  The parties have represented that 

Appellant’s  registration  obligations  were  solely  mandated  by  the  PSP’s 

determination that his Maryland offense was “similar to” aggravated indecent 

assault.   

Appellant  ultimately  pled  guilty  to  the  failure  to  register  offense  as  a 

felony of the second degree.2  Appellant filed a post-sentence motion but did 

not file a direct appeal.  Within one year of his judgment of sentence becoming 

final, Appellant filed a pro se PCRA petition, which was ultimately denied on 

January 19, 2022.  As recounted in the Turner/Finley brief, the pro se PCRA 

petition asserted, among other claims, that “the [PSP] erroneously classified 

____________________________________________ 

2 The Commonwealth’s criminal information stated that Appellant was subject 
to the enhancement codified at Section 4915.2(c)(3), which applies when the 
defendant has previously been convicted of failing to register and increases 
the grading to a felony of the first degree.  See Criminal Information, 4/20/20, 
at 1.  The Commonwealth later amended the charge to a felony of the second 
degree, presumably as part of the plea bargain.  

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Appellant’s  Maryland  conviction  as  a  violent  felony  crime  and  therefore[] 

incorrectly classified him as a lifetime sex offender registrant.”  Turner/Finley 

Brief at 6.  According to Appellant, his Maryland offense was “similar to” one 

of  the  Pennsylvania  offenses  that  requires  only  a  ten-year  period  of 

registration.  “In essence, the PCRA [p]etition argued that … Attorney Kristin 

Rice  provided  ineffective  assistance  of  counsel”  in  recommending  that 

Appellant accept the plea.  Id. 

The PCRA court appointed Attorney Thomas Nell to represent Appellant.  

On November 9, 2021, Attorney Nell and Appellant apparently agreed during 

a  video  conference  with  the  Commonwealth  and  the  PCRA  court  that  an 

evidentiary  hearing  was  unnecessary  since  the  petition  presented  a  pure 

question of law, i.e., whether Appellant had to register for life in Pennsylvania 

due to his Maryland conviction.  Id.  The PCRA court ordered both parties to 

file a memorandum of law within 45 days.  

Confusingly, Attorney Nell then filed on December 10, 2021, a document 

captioned  “Memorandum  of  Law,”  which  purported  to  find  no  merit  to 

Appellant’s  claims.3    Attorney  Nell  stated  that,  “[u]pon  further  research” 

following  the  video  conference,  he  is  “not  in  agreement  [with  Appellant]  … 

that the 10[-]year registration requirement should have been implemented.”  

Memorandum  of  Law,  12/10/21,  at  1  ¶  5.    Attorney  Nell  then  referenced 

____________________________________________ 

3 The Commonwealth did not file a memorandum, presumably due to Attorney 
Nell’s filing.  The Commonwealth has also declined to file a brief in this matter, 
relying on the PCRA court’s opinion and the Turner/Finley brief.  

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Appellant’s own legal arguments, as set forth in a pro se memorandum of law 

that  Attorney  Nell  attached  to  this  filing.    Attorney  Nell  explained  why  he 

disagreed with Appellant’s  arguments,  but otherwise made no evaluation of 

the claim.  Attorney Nell then stated that he sent Appellant a “no merit” letter, 

which was not docketed with the PCRA court.  Instead, Attorney Nell attached 

this  document  to  his  “Memorandum  of  Law,”  as  well  as  Appellant’s  pro  se 

memorandum.  Attorney Nell also informed Appellant that he would be filing 

a motion to withdraw as counsel, while assuring Appellant that the PCRA court 

would address the pro se memorandum of law. 

The PCRA court thereafter issued an order on January 19, 2022, denying 

the PCRA petition.  The order informed Appellant that Attorney Nell would file 

an  appeal  if  requested.    Attorney  Nell  then  filed  a  petition  to  withdraw  on 

January  31,  2022,  explaining  that  Appellant  wished  to  raise  allegations  of 

Attorney Nell’s ineffectiveness.  The PCRA court thereafter granted the petition 

to withdraw.  Following Attorney Nell’s withdrawal, Appellant filed a timely pro 

se notice of appeal on February 3, 2022.  The PCRA court ordered Appellant 

to  file  a  concise  statement  of  matters  complained  of  on  appeal.    Appellant 

responded,  asserting,  inter  alia,  that  Attorney  Nell  “failed  and  refused  to 

address discreet [sic] issues upon seeking to withdraw[.]”  Concise Statement, 

3/15/22, at 1.   

 

Because  Appellant’s  notice  of  appeal  raised  claims  of  PCRA  counsel 

ineffectiveness, 

pursuant 

to 

a 

procedure 

authorized 

following 

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), this Court remanded 

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for a determination of whether Appellant was entitled to appointed counsel to 

raise those claims.  The PCRA court thereafter appointed Attorney Entwistle, 

who then filed a Turner/Finley brief.  

When presented with a brief pursuant to Turner/Finley, we first 
determine whether  the brief meets  the procedural requirements 
of Turner/Finley.  See Commonwealth v. Wrecks, 931 A.2d 
717,  721  (Pa.  Super.  2007).    A  Turner/Finley  brief  must:  (1) 
detail the nature and extent of counsel’s review of the case; (2) 
list  each  issue  the  petitioner  wishes  to  have  reviewed;  and  (3) 
explain  counsel’s  reasoning  for  concluding  that  the  petitioner’s 
issues  are  meritless.    Commonwealth  v.  Pitts,  981  A.2d  875, 
876 n.1 (Pa. 2009).  Counsel must also send a copy of the brief 
to  the  petitioner,  along  with  a  copy  of  the  petition  to  withdraw, 
and inform the petitioner of the right to proceed pro se or to retain 
new counsel.  Wrecks, 931 A.2d at 721.  If the brief meets these 
requirements,  we  then  conduct  an  independent  review  of  the 
petitioner's  issues.    Commonwealth  v.  Muzzy,  141  A.3d  509, 
511 (Pa. Super. 2016). 

Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super. 2019). 

The  Turner/Finley  brief  complies  with  all  procedural  requirements.  

The  brief  identifies  the  issues  that  Appellant  wished  to  raise,  including  the 

claims  of  ineffective  assistance  of  initial  PCRA  counsel,  and  the  brief 

establishes that counsel thoroughly reviewed the relevant materials.  Counsel 

sent Appellant a copy of the brief and accompanying petition to withdraw, and 

informed Appellant of his right to proceed pro se.  Appellant has filed a pro se 

brief,  which  we  shall  consider  in  conducting  our  independent  review.    See 

Commonwealth  v.  Walters,  135  A.3d  589  (Pa.  Super.  2016)  (indicating 

that, when conducting review under Turner/Finley, this Court shall consider 

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the brief filed by counsel as well as any pro se brief filed by the appellant).  

Appellant raises the following issues for our review: 

1.  Whether  [the  PCRA]  court  erred  and  abused  its  discretion  in 
failing to consider the facts of this matter, that render its out-of-
state equivalency determination, for sexual offender registration 
purposes,  patently  erroneous,  as:  (a)  the  required  culpability 
element  and  the  gravity  of  the  offenses  have  been  ignored,  (b) 
Appellant’s Maryland plea agreement and sentence did not require 
sexual  offender  registration,  (c)  if  Subchapter  I  required 
registration,  the  Act  imposes  only  a  ten[-]year  registration 
period[]  that  has  expired,  [and]  (d)  an  ex  post  facto  violation 
exists if lifetime reporting is imposed for a foreign crime occurring 
in 2003, for which Appellant had no notice…. 

2. Whether [the PCRA] court, in ruling on a PCRA [petition], erred 
and  abused  its  discretion  in  accepting  appointed  PCRA  counsel, 
Thomas Nell’s no-merit letter when Thomas Nell failed and refused 
to  address  discreet  [sic]  issues  upon  seeking  to  withdraw,  such 
that: (a) Appellant was not required to register as a sex offender 
in Maryland upon his plea in 2003; and (b) the [PSP’s] equivalency 
determination was erroneous as a matter of law as being based 
on  perceived  conduct  and  forgetting  [sic]  culpability,  and  was 
invalid 
achieved  absent  required  notice,  resulting 
adjudication  under  Administrative  Agency  Law;  and  (c)  the 
aggravated indecent assault crime, in Pennsylvania, is a “crime of 
violence,” and lacks the mens rea component proscribing conduct 
designed,  either  for  normal  sexual  congress,  or,  to  arouse  or 
gratify sexual desire; and (d) utilizing  Subchapter I to impose a 
lifetime reporting requirement, to a foreign crime that lacked any 
element of “violence” results in an ex post facto violation.  All of 
which  render  Thomas  Nell’s  representation  to  have  been 
constitutionally ineffective. 

in  an 

Pro se Brief at 4-5.  

“Our review of a PCRA court’s decision is limited to examining whether 

the PCRA court’s findings of fact are supported by the record, and whether its 

conclusions of law are free from legal error.”  Commonwealth v. Hanible, 

30 A.3d 426, 438 (Pa. 2011). 

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Appellant’s  brief  asks  us  to  address  Attorney  Nell’s  ineffectiveness  as 

well as the underlying claims of trial counsel ineffectiveness that he wished to 

pursue.  Attorney Entwistle’s Turner/Finley brief begins by concluding that 

any  allegation  of  PCRA  counsel  ineffectiveness  is  waived.    According  to 

Attorney  Entwistle,  “Appellant’s  claim  that  [Attorney  Nell]  was  ineffective  is 

not properly before this Honorable Court.  Appellant’s PCRA Petition on appeal 

cites ineffective assistance of trial counsel, Kristin Rice, Esquire, only.  Claims 

of Attorney Nell’s ineffectiveness would be properly raised in a separate PCRA 

[a]ction.”  Turner/Finley Brief at 11 (emphasis in original). 

We  disagree.    As  cited  in  our  remand  order,  Bradley  authorizes  the 

presentation  of  PCRA  counsel  ineffectiveness  claims.    Appellant  raised  his 

PCRA  counsel  ineffectiveness  claims  at  the  first  opportunity  to  do  so.    See 

Commonwealth  v.  Parrish,  273  A.3d  989,  1002  (Pa.  2022)  (applying 

Bradley and concluding that a layered claim of ineffective assistance of trial 

and initial PCRA counsel was preserved by “raising it at the first opportunity 

to do so, specifically in his Corrected 1925(b) Statement and in his brief filed 

with this Court in this appeal”).  Appellant similarly raised his ineffectiveness 

claims at the first opportunity to do so and has briefed those arguments in his 

pro  se  brief.    Attorney  Nell’s  stewardship  is  therefore  properly  before  this 

Court. 

Moreover, we conclude that Appellant has established Attorney Nell was 

ineffective  and  remand  for  further  proceedings.    According  to  established 

precedent, Attorney Nell’s ineffective representation deprived Appellant of his 

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right  to  counsel  during  his  first  PCRA  proceeding.    We  therefore  decline  to 

address the underlying claims of ineffective assistance of plea counsel.4 

Initially, we observe that Attorney Nell created significant confusion by 

purporting  to  file  a  “no  merit”  letter  while  simultaneously  incorporating 

Appellant’s  pro  se  memorandum  of  law.    As  this  Court  explained  in 

Commonwealth v. Johnson, 179 A.3d 1153, 1157 (Pa. Super. 2018), “[i]t 

is  incumbent  upon  counsel  to  examine  the  merits  of  the  pro  se  claims  and 

determine whether those issues are worth pursuing in an amended petition.”  

Pro  se  claims  cannot  be  incorporated  by  reference  and  are  waived  if  an 

amended  petition  is  filed.    Id.    Here,  Attorney  Nell  attempted  to 

simultaneously file a “no merit” letter while also offering Appellant’s own brief 

as a separate matter for the PCRA court to decide.  This created confusion as 

to  whether  the  PCRA  court  granted  the  “no  merit  letter”—presumably  not, 

since  the  order  informed  Appellant  that  Attorney  Nell  would  continue  to 

represent Appellant—or whether it addressed Appellant’s “amended” petition 

on the merits. 

____________________________________________ 

4 While we decline to address the merits, we note that Attorney Nell, the PCRA 
court, and Attorney Entwistle addressed the comparability of the crimes based 
on  the  facts  and  not  the  comparative  elements.    In  general,  the  facts  of  a 
crime  may  be  consulted  in  only  limited  circumstances  and  only  for  limited 
purposes.    See  generally  A.L.  v.  Pennsylvania  State  Police,  274  A.3d 
1228 (Pa. 2022) (examining the statutory language “similar to” as contained 
within  Subchapter  H  of  SORNA);  Commonwealth  v.  Vandyke,  157  A.3d 
535,  538  (Pa.  Super.  2017)  (comparing  elements  of  New  York  statute  to 
Pennsylvania statute where Pennsylvania recidivist provision required that the 
out-of-state offenses be “similar” to Pennsylvania statute).  

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The  problem  with  the  PCRA  court’s  order  is  that,  in  either  case,  it  is 

legally erroneous.  If the PCRA court ruled on the “no merit” letter, that ruling 

cannot stand because Attorney Nell failed to follow the proper procedure.  If 

the PCRA court intended to rule on the merits of the “amended” petition, that 

too  is  error:  Attorney  Nell  did  not  amend  the  petition  and  instead  chose  to 

present Appellant’s pro se materials in lieu of his own argument.  Either way, 

the order must be vacated. 

Attorney  Nell  initially  believed  that  Appellant  had  presented  a  viable 

issue worthy of an amended petition, as corroborated by the video conference 

and decision to file a memorandum of law on a question of law.  According to 

the certified record, Attorney Nell later came to believe that Appellant’s claim 

lacked merit.  But the proper course at that juncture was to file a “no merit” 

letter.  As this Court explained in Commonwealth v. Kelsey, 206 A.3d 1135 

(Pa. Super. 2019):  

If PCRA counsel seeks to withdraw on the ground that the issues 
raised by the PCRA petitioner are without merit, he must satisfy 
the  following  requirements:  he  must  file  a  sufficient  no-merit 
letter,  send  the  PCRA  petitioner  copies  of  the  application  to 
withdraw and no-merit letter, and advise the PCRA petitioner of 
his right to proceed pro se or with a privately retained attorney.  
The  no-merit  letter  must  set  forth:  1)  the  nature  and  extent  of 
counsel’s  review  of  the  case;  2)  each  issue  that  the  petitioner 
wishes  to  raise  on  appeal;  and  3)  counsel’s  explanation  of  why 
each of those issues is meritless.  Where PCRA counsel’s no-merit 
letter  does  not  discuss  all  of  the  issues  that  the  convicted 
defendant has raised in a first PCRA petition and explain why they 
lack merit, it does not satisfy these mandatory requirements and 
dismissal of the PCRA petition without requiring counsel to file an 
amended PCRA petition or a further, adequate no-merit letter is a 
deprivation of the right to counsel on the PCRA petition.  

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The  fact  that  the  PCRA  court  addressed  the  merits  of  the  claim  that 

Attorney Nell initially concluded was worthy of an amended petition is of no 

moment.  As Kelsey explained:  

We  recognize  that  the  PCRA  court  conducted  an  independent 
review  of  the  claims  that  it  believed  were  asserted  in  the  PCRA 
petition  and  that  its  review  went  beyond  PCRA  counsel’s 
inadequate no-merit letter.  The error here, however, is the denial 
of the assistance of counsel, not the sufficiency of the PCRA court’s 
opinion  or  whether  [the  a]ppellant’s  claims  in  his  PCRA  petition 
are meritorious.  Even where a pro se first PCRA petition appears 
on  its  face  to  be  meritless,  the  defendant  is  entitled  to 
representation by counsel before that determination is made.   

 

Moreover, Appellant has consistently maintained that he wished to call 

Attorney Rice to testify concerning her advice to enter a guilty plea in lieu of 

presenting  a  challenge  to  the  PSP’s  classification.5    We  acknowledge  that 
____________________________________________ 

5  In  his  pro  se  petition,  Appellant  argued  that  “issues  of  fact  exist  as  to 
counsel’s conduct … that will require an evidentiary hearing to resolve, and 
[Appellant] seeks to examine Kristin Rice, Esq., of the Adams County Public 
Defender’s Office[.]”  Pro se PCRA Petition, 8/9/21, at 16 ¶ 43.  When Attorney 
Nell sought to withdraw by the January 31, 2022 filing, Attorney Nell informed 
the PCRA court that Appellant “sent a [m]otion to the undersigned indicating 
multiple issues of ineffectiveness by his PCRA counsel,” which was attached 
as an exhibit.  Within that attached exhibit, Appellant wrote: “Unbeknownst 
to Petitioner, [Attorney] Nell came to the erroneous conclusion that [Attorney] 
Rice’s conduct should not be challenged, and stipulated with the prosecution 
that  resolution  of  the  PCRA  was  a  ‘legal  issue’  and  eschewed  developing  a 
record  of  [A]ttorney  Rice’s  challenged  conduct.”    Exhibit  to  Motion  to 
Withdraw, 1/31/22, at 4 ¶ 3.   

ttorney  Entwistle’s  Turner/Finley  brief  asserts  that  “Appellant  agreed  no 
evidentiary hearing was necessary and the PCRA claim could proceed on the 
(Footnote Continued Next Page) 

  A

Id. at 1140 (citations omitted). 

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Id. at 1139 (citations omitted). 

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Appellant has merely contested the facts as set forth by Attorney Nell, and we 

do  not  suggest  that  Attorney  Nell’s  representations  regarding  Appellant’s 

decision to focus on the legal issue are not credible.  Moreover, the PCRA court 

would  have  been  present  for  the  video  conference.    To  the  extent  that  the 

PCRA court implicitly discredited Appellant’s assertions, we find it impossible 

to  separate  Attorney  Nell’s  later  “no  merit”  letter  from  any  concession  to 

forego an evidentiary hearing.  A concession that no evidentiary hearing was 

needed  represents  a  conclusion  that  an  amended  petition  was  forthcoming.  

Attorney  Nell  was,  of  course,  entitled  to  decide  upon  further  research  and 

review that Appellant’s PCRA petition lacked merit.  But, as we have explained, 

the  proper  course  at  that  juncture  was  to  file  a  “no  merit”  letter  consistent 

with the procedure stated in Kelsey, supra.   

Finally, Kelsey establishes our mandate:   

Because [the a]ppellant did not waive his right to representation 
by counsel and PCRA counsel neither represented [the a]ppellant 
on the merits of the PCRA petition nor filed a sufficient no-merit 
letter  that  addressed  all  of  [the  a]ppellant’s  claims,  the  PCRA 
court’s  dismissal  of  [the  a]ppellant’s  PCRA  petition  must  be 
vacated[,] and remand to the PCRA court for appointment of new 
PCRA  counsel  is  required.    On  remand,  [the  a]ppellant’s  new 
counsel shall be permitted to file an amended PCRA petition or, if 
counsel  concludes  in  the  exercise  of  his  or  her  professional 
judgment  that  the  issues  raised  in  the  PCRA  proceeding  are 
without merit, counsel may file an adequate no-merit letter that 

____________________________________________ 

submission  of  legal  memorandum  only,”  and  concludes  that  any  claim 
regarding  the 
failure  to  hold  an  evidentiary  hearing  was  waived.  
Turner/Finley Brief at 13.  This waiver conclusion flows from the mistaken 
belief  that  Appellant  failed  to  preserve  any  issue  relating  to  Attorney  Nell’s 
ineffectiveness.   

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addresses all of the issues raised in [the a]ppellant’s PCRA petition 
and move to withdraw. 

Kelsey, 206 A.3d at 1140 (internal citations omitted). 

Order  vacated.    Petition  to  withdraw  granted.6    Case  remanded  with 

instructions to appoint new PCRA counsel.  Jurisdiction relinquished. 

udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/21/2023 

 

  J

    J

  D

 

J-S39017-22 

____________________________________________ 

6 We grant the petition to withdraw in light of our determination that new 
PCRA counsel must be appointed on remand.   

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