Com. v. Percha, W. ( 2022 )

J-S25022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM PERCHA :
:
Appellant : No. 1257 WDA 2021
Appeal from the PCRA Order Entered October 4, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001478-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
JUDGMENT ORDER BY DUBOW, J.: FILED: OCTOBER 19, 2022
Appellant, William Percha, appeals from the order entered in the Court
of Common Pleas of Fayette County dismissing his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. After careful
review, we vacate and remand.
On January 14, 2020, the trial court sentenced Appellant to 2 to 4 years’
incarceration following his convictions for Aggravated Assault, Simple Assault,
and Recklessly Endangering Another Person. On August 26, 2020, this Court
affirmed the judgment of sentence, and Appellant did not seek further review.
Commonwealth v. Percha, 240 A.3d 202 (Pa. Super. 2020) (unpublished
memorandum).
On July 28, 2021, Appellant timely pro se filed the instant PCRA Petition,
his first. In the petition, Appellant indicated that he could not afford a lawyer
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and requested that the court appoint one for him. The court did not hold an
indigency hearing or appoint representation.
On August 18, 2021, the PCRA court issued a notice of its intent to
dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.
On October 4, 2021, the court dismissed Appellant’s petition.
Appellant timely pro se filed a Notice of Appeal and Pa.R.A.P. 1925(b)
Statement. On December 9, 2021, this Court remanded to the PCRA court for
it to “make a determination as to whether Appellant is entitled to
representation[ and, if so,] appoint counsel[.]” Order, 12/9/21, at 1. The PCRA
court appointed Appellant’s instant counsel.
On appeal, Appellant argues that the PCRA court erred by dismissing his
first PCRA Petition before appointing counsel. Appellant’s Br. at 9. We agree.
A petitioner has an absolute right to counsel on his first PCRA petition,
“regardless of the merits of his claim.” Commonwealth v. Lindsey, 687 A.2d
1144, 1145 (Pa. Super. 1996); see also Pa.R.Crim.P. 904(C). “Where that
right has been effectively denied by the action of court or counsel, the
petitioner is entitled to a remand to the PCRA court for appointment of counsel
to prosecute the PCRA petition.” Commonwealth v. Kenney, 732 A.2d 1161,
1164 (Pa. 1999) (citation omitted). “[W]here an appellant files his first PCRA
Petition without the assistance of counsel, the appellant shall be permitted to
file an amended PCRA Petition with the assistance of counsel.”
Commonwealth v. Tedford, 781 A.2d 1167, 1170 (Pa. 2001) (citation
omitted). “[T]he [PCRA] court’s power to dismiss a first PCRA petition must
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yield to the [a]ppellant’s rights to counsel.” Commonwealth v. Walker, 721
A.2d 380, 382 (Pa. Super. 1998).
Our review of the trial court record reveals that the PCRA court failed to
act on Appellant’s request for PCRA counsel before denying PCRA relief. Since
an indigent, first-time PCRA petitioner has an absolute right to counsel, and
Appellant did not waive that right, the PCRA court erred. We, thus, vacate and
remand to permit counsel to file an amended PCRA Petition on Appellant’s
behalf.1
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2022
____________________________________________
1We note that on December 14, 2021, on remand from this Court, the PCRA
court appointed Appellant’s current counsel. As a result, the instant remand
order does not include the appointment of counsel.
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