Com. v. Brown, N. ( 2016 )

J-S45034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHANIEL BROWN,
Appellant No. 1897 WDA 2014
Appeal from the PCRA Order October 2, 2014
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0013099-2006
BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 29, 2016
Appellant, Nathaniel Brown, appeals from the order of October 2,
2014, which dismissed, following a hearing, his first petition brought under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. For the
reasons discussed below, we remand this case with instructions.
Our review of the record demonstrates that, on March 11, 2015,
Appellant filed a pro se petition seeking leave to proceed pro se on appeal.
It appears that the PCRA court did not forward the petition to PCRA counsel
and did not take any action on the petition.
An indigent, first-time PCRA petitioner is entitled to counsel throughout
PCRA proceedings, including any appeal to this Court. See Commonwealth
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S45034-16
v. White, 871 A.2d 1291, 129-23 (Pa. Super. 2005). If a PCRA petitioner
wishes to proceed without the assistance of counsel, the PCRA court must
conduct an on-the-record colloquy, see Commonwealth v. Grazier, 713
A.2d 81 (Pa. 1998), to determine if the petitioner’s waiver is knowing,
intelligent and voluntary. When, as here, it appears that an indigent, first-
time PCRA petitioner fails to make a proper waiver of his right to counsel,
this Court can raise the error sua sponte and remand the case to the PCRA
court to determine if Appellant is knowingly, intelligently and voluntarily
waiving his right to counsel. See Commonwealth v. Stossel, 17 A.3d
1286, 1290 (Pa. Super. 2011).
Appellant is indigent and the instant PCRA petition is his first. (See
Order, 10/22/14, at unnumbered page 1). Thus, he is entitled to appointed
counsel throughout the proceedings. While Appellant did file a petition
seeking leave to proceed pro se on appeal, there was apparently no Grazier
hearing to determine whether Appellant knowingly, intelligently and
voluntarily waived his right to counsel on this appeal.
Accordingly, we remand this case to the PCRA court. If, the PCRA
court determines on remand that Appellant wishes to proceed pro se on this
appeal, the PCRA court shall promptly conduct a Grazier hearing. If
Appellant knowingly, intelligently and voluntarily waives his right to
appellate counsel pursuant to Grazier, the PCRA court shall ensure that a
transcript of the Grazier hearing is made a part of the certified record. If
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J-S45034-16
Appellant validly chooses to proceed pro se, Appellant shall file a brief with
this Court within thirty days of the trial court’s order; the Commonwealth
may file a responsive brief within thirty days of when Appellant files a brief.
Regardless of the disposition of the Grazier hearing, the PCRA court shall
ensure that the certified record is thereafter returned to the Prothonotary of
this Court sixty days after the date of this memorandum.
Further, the Court of Common Pleas of Allegheny County is hereby
ordered to transcribe and transmit to the Superior Court of Pennsylvania the
notes of testimony and exhibits from the September 25, 2014 PCRA hearing.
The Court of Common Pleas shall comply with this order within sixty (60)
days from the date on which it is entered.
Case remanded with instructions. Panel jurisdiction retained.
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