Com. v. Pagan, M., Jr.

• Court: Superior Court of Pennsylvania
• Decided: November 9, 2022
• Docket: 14 MDA 2022
• Status: Unpublished

Opinion

J-S23035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MANUEL PAGAN, JR. : : Appellant : No. 14 MDA 2022

Appeal from the PCRA Order Entered December 14, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001286-2017

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.

MEMORANDUM BY COLINS, J.:

Manuel Pagan, Jr., appeals from the order dismissing, without a hearing,

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42

Pa.C.S.A. §§ 9541-9546. Pagan, acting pro se, has also submitted a filing

titled “Motion to Proceed Pro Se”. In that motion, Pagan, inter alia, “requests

that this Court remand [his] case back to the PCRA court and allow him to

further develop [a layered ineffective assistance of counsel] claim pro se (or

with newly appointed counsel).” Motion to Proceed Pro Se, dated 9/22/22, at

7 (finding fault with both his trial and PCRA counsel). Furthermore, Pagan

“requests that [this] Court grant him leave to raise and develop four additional

[ineffective assistance of counsel] claims.” Id. Pagan premises his present

ability to assert a claim that his PCRA counsel was ineffective based on our

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 Retired Senior Judge assigned to the Superior Court. J-S23035-22

Supreme Court’s decision in Commonwealth v. Bradley. See 261 A.3d 381

(Pa. 2021). We vacate the order dismissing Pagan’s petition and remand for

further proceedings.

Pagan’s counsel in the current appeal is the same counsel who

represented him before the PCRA court. Pagan’s twelve-page pro se motion

avers that his PCRA counsel was ineffective because counsel failed “to bring

up [multiple] issues related to trial counsel’s ineffectiveness[.]” Motion to

Proceed Pro Se, dated 9/22/22, at 4. Believing his PCRA counsel’s omissions

to have effectively waived review of meritorious pathways to relief, Pagan

asserts that he “had no way to compel [PCRA counsel] (who had already filed

a Finley [550 A.2d 213 (Pa. Super. 1998) (en banc)] [l]etter and

demonstrated no interest in [his] case) to litigate more issues that [Pagan]

wanted to litigate.” Id. Furthermore, Pagan believes that PCRA counsel

“underdeveloped” the sole claim advanced on his behalf in the present appeal.

Id., at 6. Accordingly, Pagan seeks remand, which “would include the

appointment of new PCRA counsel or, alternatively, [Pagan] would be allowed

to represent himself.” Id., at 4.

Implicit in Pagan’s argument is that this is his first opportunity to raise

a claim that his PCRA counsel was ineffective. Guided by Bradley, the record

does not yield any clear resolution to the varied issues asserted in Pagan’s pro

se motion. As such, a remand is appropriate for further proceedings. See

Bradley, 261 A.3d at 401-02 (allowing a PCRA petitioner to raise claims of

PCRA counsel’s ineffectiveness at the first opportunity to do so, encompassing

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even an appeal from a PCRA court determination, and further identifying that

an “appellate court may need to remand to the PCRA court for further

development of the record and for the PCRA court to consider such claims as

an initial matter”).1

Pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the

PCRA court should, on remand, hold a hearing to ascertain whether Pagan is

permitted to proceed pro se or is entitled to the appointment of new counsel.

If continuing without prior counsel is appropriate, the court should then allow

Pagan to more fully develop his contention that his PCRA counsel was

ineffective. After that, the court should make a corresponding ruling on the

issue of ineffectiveness, allowing for the disposal of this claim in the first

instance.

1 Given that Pagan’s PCRA counsel has filed a brief in this appeal, we acknowledge the apparent disconnect between the Bradley decision, which gives PCRA petitioners the ability to assert ineffective assistance of counsel claims against their PCRA counsel at the first opportunity to do so, and our Supreme Court’s decision in Commonwealth v. Rogers, 645 A.2d 223 (Pa. 1994), wherein it was made clear that appellants are required to remain with counsel through an appeal once an appellate brief has been filed. See 645 A.2d at 584.

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Order vacated. Motion to proceed pro se denied as moot. Case remanded.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/9/2022

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