J-S50009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDRE JACOBS : : Appellant : No. 1607 WDA 2017
Appeal from the PCRA Order October 11, 2017 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000265-2005
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 27, 2018
Andre Jacobs appeals from the October 11, 2017 order denying PCRA
relief. Since Appellant was deprived of assistance of counsel at critical points
in the PCRA process, we vacate the order and remand for further proceedings
consistent herewith.
On February 24, 2004, Appellant assaulted two corrections officers while
he was in the long-term segregation unit at the State Correctional Institution
at Fayette (“SCI Fayette”). On December 4, 2007, a jury convicted him of
aggravated assault, assault by a prisoner, and simple assault, and the court
sentenced him to twenty-seven to 120 months imprisonment. Appellant filed
a timely direct appeal from judgment of sentence, which this Court denied. J-S50009-18
Commonwealth v. Jacobs, 1631 WDA 2012 (Pa.Super. 2013) (unpublished
memorandum).1
On May 9, 2014, Appellant filed a timely pro se PCRA petition, his first,
in which he identified two issues involving trial counsel’s ineffectiveness: that
trial counsel failed to raise an insanity defense, or alternatively, that counsel
failed to investigate whether his prescribed anti-psychotic medications caused
him to be involuntarily intoxicated and to act out violently against the prison
guards. Counsel was appointed, and subsequently, the court granted counsel
permission to withdraw. The court appointed James V. Natale to act as
counsel. Attorney Natale filed a motion seeking discovery of Appellant’s
mental health records and disciplinary report, and requesting that the court
order a psychiatric assessment of Appellant to determine whether he suffered
from a mental illness. The motion was granted, and Dr. Bruce Wright
conducted a psychiatric assessment of Appellant on January 16, 2016.
On February 12, 2016, Appellant wrote to Attorney Natale complaining
that Dr. Wright was given only one 2005 report from Dr. Stuart Burstein, and
not the entirety of his mental health records. Appellant advised counsel that
Dr. Wright told him that he did not have sufficient information to complete the
evaluation, although the expert filed a report four days later.
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1 We note that more than five years elapsed between Appellant’s conviction and the resolution of his direct appeal. Appellant’s direct appeal to this Court initially was dismissed when his counsel failed to file a brief. Appellant had to file a PCRA petition in order to obtain reinstatement of his direct appeal rights.
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Counsel filed an amended PCRA petition on Appellant’s behalf on April
25, 2016. He represented therein that, after review of Appellant’s mental
health records and his assessment, Dr. Wright noted Appellant’s long history
of mental illness dating back to childhood; that he had been diagnosed with
mood disorders, intermittent explosive disorder, post-traumatic stress
disorder, personality disorder, substance abuse, and learning difficulties; and
that he had been prescribed numerous psychotropic medications. Amended
Petition, 4/25/16, at ¶¶9, 10. Dr. Wright confirmed that Appellant had been
diagnosed with bipolar disorder, personality disorder with mixed features, a
history of conduct disorder, and substance abuse. Id. at ¶12. The expert
opined that Appellant’s solitary confinement had potentially exacerbated those
illnesses. Based on Dr. Wright’s report, PCRA counsel asserted that trial
counsel was ineffective for failing to request a pre-trial evaluation of Appellant
by a mental health professional to determine whether he was competent to
stand trial and whether he was insane at the time of the incident. Id. at ¶¶4,
12.
In the successive months, counsel obtained additional records and
supplied them to Dr. Wright to assist him in his assessment of Appellant’s
mental health status at the relevant time. A hearing was held on September
30, 2016, at which Appellant was present. Attorney Natale advised the court
that Dr. Wright had concluded that Appellant was not insane at the time of
the incident. Counsel added that, after reviewing Appellant’s other issues, he
had “serious doubts as to the merit of this PCRA petition.” N.T. Amended Post
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Conviction Relief Act Hearing, 9/30/16, at 4. Nonetheless, counsel stated that
Appellant wanted his “assistance to help him effectuate his PCRA petition, and
perhaps appeal[,]” and counsel defined his role as limited to providing that
assistance. Id. Thus, Appellant was effectively forced to represent himself,
as counsel did not file a no-merit letter following his re-evaluation of
Appellant’s insanity claim.
Appellant disputed counsel’s version of their conversation.2 He informed
the court that counsel had advised him that he would withdraw from the case
and Appellant would proceed pro se. Since Appellant felt he required legal
assistance, he did not want to proceed pro se, and thus, he stated he would
accept Mr. Natale as his attorney. Nonetheless, Appellant complained that Mr.
Natale had failed to investigate the issue, and further, that this was the first
time he had met counsel.
The PCRA court concluded from Attorney Natale’s representations that
the claim of trial counsel ineffectiveness for failing to obtain a psychiatric
evaluation was the only arguably meritorious issue, and that all other issues
had been previously litigated or waived. Id. at 9. Dr. Wright’s letter, in which
he opined that Appellant was not insane when he committed the offenses, was
marked as an exhibit by the Commonwealth, and moved into evidence. Id.
at 11. When counsel did not object to its admission, Appellant objected pro
se, insisting that “[i]f [Attorney Natale is ] not going to represent me then I ____________________________________________
2 Appellant also informed the court that he had filed a complaint against counsel with the Pennsylvania Disciplinary Board.
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will proceed on my own, I have no other choice.” Id. at 12. The court asked
Attorney Natale to “to sit stand by,” and noted Appellant’s objection.
Appellant challenged the admission of the report on the ground that Dr. Wright
was not an expert in the psychiatric effect of solitary confinement, which the
court overruled, and the report was admitted. The court stated that it would
conduct an independent review of the record and render an opinion.
Appellant advised the court that he wished to testify. After being placed
under oath, Appellant told the PCRA court that he wanted to call an expert on
the adverse effects of solitary confinement, but he only learned that day that
counsel was not going to call such an expert. Id. at 20. Appellant moved for
a continuance in order to hire an expert, and the court denied the motion.
Appellant then attempted to place into evidence the curriculum vitae and an
article by Stuart Grassion, M.D., an expert in solitary confinement. The
Commonwealth’s hearsay objection to the proffered exhibit was sustained.
On November 3, 2016, PCRA counsel filed a motion requesting a
Grazier hearing, representing therein that Appellant had expressed a desire
to waive his right to counsel and proceed pro se.3 The court scheduled the
Grazier motion for a hearing on January 24, 2017. However, on November
28, 2016, the PCRA court issued an order in which it stated that it had ____________________________________________
3 Attached to counsel’s Motion for a Grazier Hearing was Appellant’s handwritten pro se “Motion to Fire James V. Natale.” In that motion, Appellant alleged that counsel “constructively abandoned” him at the September 30, 2016 hearing “by refusing to represent Defendant or pursue any of his issues.” Motion to Fire James V. Natale, 10/27/16, at 1. He also alleged therein that counsel was required to file a “no-merit letter.” Id. at 2.
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considered the record of the September 30, 2016 hearing, and since there
was no testimony offered as to Appellant’s competency to stand trial, the court
ordered that the parties appear for a hearing on January 24, 2017.
On December 27, 2016, Appellant, although ostensibly represented by
counsel, filed a pro se supplemental PCRA petition. He alleged, inter alia, that
trial counsel was ineffective for refusing to investigate his insanity defense,
and he proffered evidence of the effects of solitary confinement.
On January 9, 2017, Attorney Natale obtained a continuance of the
January 24, 2017 hearing until March 31, 2017, purportedly to obtain
additional mental health records. On March 3, 2017, Attorney Martha Richards
Conley entered her appearance on Appellant’s behalf, and Attorney Natale
successfully moved to withdraw as counsel on March 17, 2017.
The PCRA court clarified that the purpose of the March 31, 2017 hearing
was to explore trial counsel’s ineffectiveness as it related to Appellant’s
competency to stand trial. N.T. PCRA Proceeding, 3/31/17, at 20.4 The
Commonwealth called trial counsel, Jeremy Davis, Esquire, who testified that
he did not have any concerns about Appellant’s understanding of the nature
of the charges or their discussions. Id. at 11. He was “impressed with
[Appellant’s] intelligence” and “[h]e was definitely assisting in his defense.”
Id. Trial counsel explained that Appellant testified on his own behalf, and ____________________________________________
4 At the hearing, PCRA counsel agreed with the court that “[t]he issue of an
insanity defense was addressed at the [earlier] PCRA hearing[,]” and that “[t]he issue is mental health evaluation to determine the defendant’s competency to stand trial.” N.T. PCRA Proceeding, 3/31/17, at 6.
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identified a witness, whom counsel called via video. The first trial ended in a
mistrial when the jury could not reach a verdict. A new trial was scheduled.
Prior to the retrial, Attorney Davis testified that he and Appellant corresponded
via letter and spoke on at least one occasion.
Trial counsel stated that he did not investigate the issue of Appellant’s
prior mental health problems or have him evaluated because he did not
believe that Appellant was incompetent to stand trial. Id. at 18. Attorney
Davis pointed to the fact that Appellant assisted him throughout trial.
According to trial counsel, Appellant understood the questions he was asked.
Counsel testified further that, as a Public Defender, he had previously sought
evaluations for defendants to determine whether they were competent to
stand trial. At no time during his communications with Appellant was there
any indication that an evaluation was warranted. Id. at 15. In addition, trial
counsel did not recall Appellant asking for a mental health evaluation, or
advising counsel that he had been institutionalized when he was six years old
due to mental health issues.
PCRA counsel then sought to introduce an April 5, 2016 report from Dr.
Wright, the court-appointed psychiatrist, as evidence of Appellant’s history of
mental illness. She described that report as much more detailed than the
report offered by the Commonwealth at the September hearing, and relevant
not just to the case-in-chief, but also to sentencing. Id. at 22, 23. The
Commonwealth objected on two grounds: that the report was not probative
as to competency, and that it was entitled to cross-examine the doctor
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regarding his opinions. PCRA counsel asked that she be permitted to produce
Dr. Wright later, but the court sustained the Commonwealth’s objections to
the report.
Appellant testified as follows. He grew up in an abusive household. Id.
at 25. He was diagnosed with PTSD as a six-year-old child, and was sent first
to Eastern State School and Hospital, and then to Hoffman Homes in
Gettysburg, for mental health treatment. After being charged with drug
possession at age twelve or thirteen years of age, he was sent to a state
institution at age fifteen. At age nineteen, Appellant was placed in solitary
confinement, where he remained for seventeen years.
Appellant testified that Attorney Davis initially did not represent him,
and further that the attorney was not prepared for the first trial. Appellant
stated that he did not meet counsel until trial, but at that time, he supplied
counsel with multiple documents detailing his mental health history, and
showed him motions he had filed requesting a mental health evaluation.
Appellant testified that he did not intentionally punch the guard, and that he
wanted counsel to argue that the long-term effects of solitary confinement
explained and excused his conduct. According to Appellant, trial counsel
wanted to pursue a “he did not do it” defense, and was uninterested in
literature about the medications he was taking at the time, his mental health
background, or the adverse side effects of solitary confinement.
PCRA counsel sought to elicit testimony from Appellant regarding the
conditions he experienced in solitary confinement. She argued that the
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information was relevant to his competency in 2007. Appellant testified that
he asked trial counsel to investigate the medications he was on at the time of
the incident and maintained that due to the effects of the medications, he did
not have the intent necessary to commit the crimes charged. Trial counsel,
however, would not pursue this strategy.
On cross-examination, Appellant acknowledged that he testified at trial
that he did not know if he struck the guard, but he did not intend to do so.
Id. at 34. Furthermore, despite his claim that he was incompetent at the time
of trial, Appellant admitted that he filed a civil action against SCI Pittsburgh
in November 2008, prior to the underlying trial herein. He subsequently
represented himself at a jury trial and received a $185,000 verdict against
three prison workers. Id. at 35.
In support of his claim that solitary confinement affected his
competency, Appellant offered Dr. Michael J. Zigmond, a neuroscientist, as an
expert in “the biology of the brain and the behavioral consequences of brain
changes.” Id. at 39. Dr. Zigmond’s report addressed the impact of isolation
on animals, which he related to humans. In addition, the expert testified he
was familiar with the scientific literature regarding the effects of isolation on
humans. He opined that two hundred years of experience indicated that,
“solitary confinement can cause anxiety, depression, fear, social withdrawal,
and also violence.” Id. at 41. Dr. Zigmond described the effects of certain
drugs and prolonged isolation on the biochemistry of the brain, but had no
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opinion as to Appellant’s state of mind or competency on or about December
3, 2007. Id. at 46.
At the end of the hearing, PCRA counsel urged the court to consider not
solely competency, but counsel’s failure to investigate Appellant’s mental
health as well. The court noted that Appellant “had been represented by
counsel and I was prepared until you entered your appearance to have a
Grazier Hearing today.” Id. at 47. That became unnecessary, according to
the court, because Attorney Conley was representing Appellant. The court
announced that it would consider “only those properly pled issues.” Id. at 47.
Counsel for Appellant argued that the issue of counsel’s failure to investigate
Appellant’s mental health status was pled in both the pro se petition and the
amended petition.
On October 11, 2017, the court denied PCRA relief. Attorney Conley
presented a petition on October 30, 2017, requesting leave to withdraw as
PCRA counsel for Appellant, which was granted. That same day, Appellant
filed a pro se notice of appeal to this Court, and requested transcripts. The
PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, and Appellant timely complied. The PCRA
court filed its Rule 1925(a) opinion, in which it concluded that Appellant did
not establish that trial counsel was ineffective, and denied relief.
Appellant, who is represented by counsel on appeal, raises three issues
for our review:
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I. Did the PCRA court err in not considering [Appellant’s] counsel’s brief as a request to amend [Appellant’s] PCRA petition?
II. Did the PCRA court err in dismissing Appellant’s PCRA petition where [Appellant’s] trial counsel abandoned [Appellant] at his September 20, 2016 hearing?
III. Did the PCRA court err in dismissing Appellant’s PCRA petition where the lower court denied Appellant his right to proceed pro se?
Appellant’s brief at 5.
In reviewing the denial of PCRA relief, we must decide whether the PCRA
court’s factual determinations are supported by the record and are free of
legal error. Commonwealth v. Brown, 2018 Pa. LEXIS 5489, *32-33 (Pa.
2018) (citing Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)). To
the extent that the PCRA court’s credibility determinations are supported by
the record, they are binding on this Court. However, we apply a de novo
standard of review to the PCRA court’s legal conclusions. Id. We review the
PCRA court’s findings and the evidence of record in a light most favorable to
the winner at the trial level, herein, the Commonwealth. Id.
The Commonwealth points out the inconsistencies among Appellant’s
amended PCRA petition, his Rule 1925(b) concise statement of errors, and the
issues briefed and argued on appeal, and urges us to find all of Appellant’s
issues either waived or not properly before us. It contends that Appellant’s
first issue, regarding the failure to treat counsel’s brief below as an amended
PCRA petition, is waived for failure to argue it in his appellate brief. According
to the Commonwealth, Appellant’s second issue, which alleges abandonment
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of PCRA counsel, is not properly before this Court because the PCRA petition
alleged only trial counsel ineffectiveness. Appellant’s third issue, that the
PCRA court denied Appellant his right to proceed pro se, is waived for lack of
argument in the brief. Finally, the Commonwealth maintains that Appellant
has briefed and argued a fourth issue that was not fairly comprised within the
errors alleged in Appellant’s Rule 1925(b) concise statement, nor identified in
his statement of issues in his brief: that trial counsel was ineffective for failing
to investigate and evaluate Appellant’s competency prior to trial. Hence, the
Commonwealth contends that the issue is waived.
Appellant’s first and third issues are not argued or developed in his
appellate brief, and hence, we agree with the Commonwealth that these issues
are waived. However, we reject the Commonwealth’s contention that the
issue of PCRA counsel ineffectiveness had to be identified in a PCRA petition
in order to be preserved for appellate review. The alleged ineffectiveness of
PCRA counsel had not yet occurred when the PCRA petition was filed. While
generally the issuance of a Rule 907 notice of intent to dismiss provides an
opportunity for a petitioner to respond with an assertion of PCRA counsel
ineffectiveness, thus preserving the issue for purposes of appeal, no such
notice is required where, as here, there is an evidentiary hearing. See
Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.Super. 2015) (citing
Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa.Super. 2012) (holding
that “the Rule 907 response is the opportunity for the petitioner to object to
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counsel’s effectiveness at the PCRA level”)). Where a Turner/Finley no-
merit letter is filed, the petitioner can preserve the issue of PCRA counsel
ineffectiveness by asserting it in his objection. See Commonwealth v. Rigg,
84 A.3d 1080, 1085 (Pa.Super. 2014); see also Commonwealth v. Ford,
44 A.3d 1190 (Pa.Super. 2012) (holding issues of PCRA counsel
ineffectiveness must be raised in a serial PCRA petition, in response to a Rule
907 notice, or while the PCRA court retains jurisdiction).
In the instant case, no Rule 907 notice issued; Turner/Finley was not
invoked. However, Appellant voiced his complaints of PCRA counsel
ineffectiveness at the September PCRA hearing and in a subsequent pro se
motion to fire counsel, which was incorporated into counsel’s motion for a
Grazier hearing. Those claims were not addressed at the second evidentiary
hearing as the PCRA court limited the scope of that hearing to competency.
Although the PCRA court did not acknowledge and address the issue of PCRA
counsel ineffectiveness in its Rule 1925(a) opinion, we find that Appellant
raised the issue below for purposes of appellate review.5
5 See Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014) (en banc) (finding waiver of claims of PCRA counsel ineffectiveness raised for the first time on appeal); but see Commonwealth v. Patterson, 192 A.3d 1123, 1129 (Pa. 2018) (finding PCRA counsel’s failure to file a timely appeal from denial of petitioner’s first PCRA petition, raised for the first time on appeal, to constitute ineffectiveness per se, as it completely deprived him of appellate review).
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Moreover, we find merit in Appellant’s claim that he was abandoned by
PCRA counsel at the September 30, 2016 hearing. The instant petition is
Appellant’s first PCRA petition.6 The law is well settled that a petitioner has a
rule-based right to counsel under the PCRA on a first petition, and that the
right extends throughout the appellate process. See Commonwealth v.
Adams, 350 A.2d 820 (Pa. 1976) (wherein the Supreme Court replaced the
statutory right to collateral review counsel with a rule-based right to counsel).
A petitioner is entitled to the assistance of counsel to guarantee that he has
“at least one meaningful opportunity to have [his] issues reviewed.”
Commonwealth v. Karanicolas, 836 A.2d 940, 945 (Pa.Super. 2003)
(citations and internal quotation marks omitted). That right “extends
throughout the post-conviction proceedings, including any appeal from the
disposition of the PCRA petition.” Commonwealth v. Smith, 121 A.3d 1049,
1053 (Pa.Super. 2015); Pa.R.Crim.P. 904(F)(2).
The record establishes that Appellant filed a pro se petition, counsel was
appointed, counsel was permitted to withdraw, and new counsel, Attorney
Natale, was appointed. Attorney Natale obtained discovery, successfully
6 Appellant filed a prior PCRA in which he successfully obtained reinstatement
of his direct appeal rights nunc pro tunc because direct appeal counsel failed to file a brief in this Court. Since “a PCRA petition brought after an appeal nunc pro tunc is considered an appellant's first PCRA petition[,]” Appellant was entitled to the appointment of counsel. Commonwealth v. Figueroa, 29 A.3d 1177, 1181 (Pa.Super. 2011) (quoting Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007)).
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persuaded the court to appoint an expert, and filed an amended PCRA petition
on Appellant’s behalf. However, at the PCRA hearing on September 30, 2016,
counsel represented to the court that the expert witness could not render an
opinion that Appellant was insane at the time he committed the assault on the
corrections officer, and that there were no other issues of merit to pursue.
Counsel advised that he would assist Appellant in pursuing an appeal, which
the court construed and accepted as an offer to act as standby counsel.
Appellant, present for the hearing, expressed his surprise at counsel’s
abandonment of his claims, but stated that he did not want to proceed pro se
as he felt he required legal assistance, and thus, he would accept Mr. Natale’s
assistance. However, he complained to the PCRA court about the procedure,
and charged PCRA counsel with the failure to investigate the issues properly.
We agree with Appellant that PCRA counsel abandoned him at the
September 30, 2016 hearing. Having concluded that there were no
meritorious issues to present, PCRA counsel should have advised the court
that he intended to seek leave to withdraw and file a Turner-Finley no-merit
letter. Had counsel done so, Appellant would have had an opportunity to file
a response asserting PCRA counsel’s ineffectiveness for the reasons he stated
at the September hearing. If the court subsequently granted counsel’s
petition to withdraw, Appellant could have either retained a new attorney or
proceeded pro se.
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Counsel’s failure to follow the proper procedure culminated in hybrid
representation at the September 30, 2016 hearing. Attorney Natale argued
against his client. Counsel “ultimately succeeded neither in advancing
Appellant’s claims nor certifying their lack of merit.” Karanicolas, supra at
947. For all practical purposes, Appellant was unrepresented at the hearing
and he timely objected.7
Following the hearing, Attorney Natale continued to file motions on
Appellant’s behalf. Counsel sought additional discovery and then filed a
motion for a Grazier hearing requested by his client. The PCRA court initially
scheduled such a hearing, but the purpose of the hearing changed to an
evidentiary hearing when Appellant retained new counsel. While it would
appear at first blush that a second evidentiary hearing with new counsel would
have alleviated any prejudice due to the lack of PCRA counsel at the first
hearing, we do not find that to be the case on the record before us. At the
second hearing, the scope of the inquiry was limited to whether Appellant was
competent at the time of trial. Although Appellant was permitted some
latitude in exploring the effect of medications and solitary confinement on
brain chemistry, he was not permitted to revisit his claims of
insanity/diminished capacity that Mr. Natale abandoned at the first hearing.
7 The PCRA court also played a role in the irregularities that occurred herein. When PCRA counsel announced at the September 30, 2016 hearing that he could not represent Appellant, the court was obligated to intervene and ensure that the right to counsel was protected.
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Our concern that Appellant was prejudiced by the lack of counsel at the
first evidentiary hearing is heightened by the subsequent events. On the same
day that Appellant filed a pro se notice of appeal to this Court, the PCRA court
permitted Attorney Conley, who was privately retained, to withdraw as
counsel. At the time, however, the PCRA court made no determination
whether Appellant was entitled to appointment of counsel for purposes of
appeal. The PCRA court directed him to file a Rule 1925(b) concise statement
of errors complained of on appeal, and specifically noted on the order that it
should be sent to Appellant. Thus, the court knew that Appellant was
unrepresented, but failed to ascertain whether counsel should be appointed
for purposes of appeal, or if Appellant waived his rule-based right to counsel.
See Commonwealth v. Robinson, 970 A.2d 455, 459 (Pa.Super. 2009)
(finding valid waiver of rule-based right to counsel where colloquy
demonstrates that the petitioner understood “(1) his right to be represented
by counsel; (2) that if he waived this right, he will still be bound by all normal
procedural rules; and (3) that many rights and potential claims may be
permanently lost if not timely asserted”).
Consequently, Appellant filed a Rule 1925(b) concise statement of errors
complained of on appeal without the benefit of counsel. The record establishes
that Appellant had not waived his right to counsel, and there had been no
determination that he did not qualify for appointed counsel. Nor was Appellant
apprised that he had a right to retain counsel, or of the risks and benefits of
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proceeding without counsel. Although Appellant subsequently retained
counsel to prepare and file his brief in this Court, appellate counsel was limited
to issues identified in Appellant’s uncounseled Rule 1925(b) concise
statement, perpetuating the prejudice.8
Accordingly, we find that Appellant was deprived of counsel at several
critical stages of the litigation of his first PCRA petition, that he was prejudiced
thereby, and that the order denying relief must be vacated and the case
remanded. We note that Appellant is currently represented by private
counsel. Upon remand, the PCRA court should first determine whether private
counsel will continue to represent Appellant or, if not, whether Appellant
qualifies for the appointment of counsel. In the event Appellant does not
qualify for appointed counsel, and opts not to retain private counsel, he should
be fully advised of the perils of proceeding pro se. If Appellant qualifies for
appointed counsel, and does not waive his right to counsel in favor of
representing himself at a Grazier hearing, counsel should be appointed. After
resolution of the issues involving entitlement to counsel, Appellant should be
afforded a new evidentiary hearing on all claims properly pled in the amended
PCRA petition.
8 The Commonwealth avails itself of inadequacies in the uncounseled Rule 1925(b) concise statement to argue waiver herein. Specifically, the Commonwealth argues that Appellant’s claim that trial counsel was ineffective for failing to investigate and evaluate Appellant’s competency prior to trial is waived, as it was not identified in Appellant’s Rule 1925(b) concise statement.
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Order vacated. Case remanded for proceedings consistent herewith.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/27/2018
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