Com. v. Martin, M.

J-S42034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL A. MARTIN :
:
Appellant : No. 398 WDA 2022
Appeal from the PCRA Order Entered March 15, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0003982-2013
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED: JUNE 6, 2023
I agree with the Majority that this case must be remanded for the PCRA
court to address claims of prior PCRA counsel’s ineffectiveness. I write
separately to highlight an issue of PCRA court error and its ramifications on
the proceedings following remand.
These post-conviction proceedings began in the proper and customary
fashion. Upon the pro se filing of Appellant’s first PCRA petition, the PCRA
court correctly appointed James Robinson, Esquire, as counsel.
Attorney Robinson sought to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988) (en banc), and the PCRA court issued Pa.R.Crim.P. 907
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* Retired Senior Judge assigned to the Superior Court.
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notice of its intent to dismiss the petition without a hearing. In opposition,
Appellant availed himself of the holding of Commonwealth v. Bradley, 261
A.3d 381 (Pa. 2021), and raised multiple pro se claims of Attorney Robinson’s
ineffective assistance “at the first opportunity to do so[.]” Id. at 401. In
particular, Appellant raised the same issues that he advances on appeal. See
Response to Notice of Intent to Dismiss, 7/9/18, at 9-14 (claiming that
Attorney Robinson was ineffective in failing to pursue or address claims
concerning Appellant’s mental health records, the available diminished
capacity defense, the lack of communication of a plea offer, and the waiver
on direct appeal of the challenge to autopsy photos). Appellant later added a
claim of ineffective assistance in the failure to call Hope Miller as a witness at
trial. See Supplemental PCRA Summary, 10/4/19, at 1-5. The PCRA court
ultimately granted Attorney Robinson’s withdrawal request upon determining
that none of the issues Appellant had raised in his petition was meritorious or
warranted a hearing.1
Thereafter, procedural irregularities ensued. Despite concluding that
the petition raised no issues to be resolved after a hearing, the PCRA court
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1 In what in hindsight was the first indication that these proceedings were
straying from the usual path, the PCRA court did not immediately allow
counsel to withdraw upon determining that Attorney Robinson properly
concluded that the petition was meritless and there was no point in further
proceedings. Instead, the PCRA court took Attorney Robinson’s request under
advisement, and informed Appellant that he could respond to the notice pro
se or with the assistance of his not-yet-dismissed counsel. See Notice of
Intent to Dismiss, 3/19/18, at 11-12.
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also ruled that Appellant was “entitled to present facts that might support his
position” as to the claims of PCRA counsel’s ineffectiveness. See N.T. Hearing,
10/16/18, at 8. Therefore, instead of dismissing the petition as indicated in
its Rule 907 notice, the PCRA court held a hearing on Appellant’s claims of
ineffective assistance of PCRA counsel, but denied his request for the
appointment of new counsel, requiring Appellant to proceed pro se.
The PCRA court’s failure to appoint counsel to represent Appellant at the
PCRA hearing on his challenges to the ineffectiveness of PCRA counsel was
legal error. Pursuant to Pa.R.Crim.P. 904(D), the PCRA court must appoint
counsel to represent an indigent petitioner any time it determines an
evidentiary hearing is necessary, even where no right to counsel otherwise
attaches. See, e.g., Commonwealth v. Laboy, 230 A.3d 1134, 1138–39
(Pa.Super. 2020). The only time a PCRA petitioner should appear pro se at
an evidentiary hearing is if he has made a knowing and voluntary waiver of
his right to counsel pursuant to Commonwealth v. Grazier, 713 A.2d 81, 82
(Pa. 1998) (“When a waiver of the right to counsel is sought at the post-
conviction and appellate stages, an on-the-record determination should be
made that the waiver is a knowing, intelligent, and voluntary one.”).
Furthermore, “[i]f the appointment of counsel is deemed necessary for
purposes of conducting an evidentiary hearing, then the petitioner requires
the assistance of counsel throughout the litigation of the issue,” including the
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appeal process. Commonwealth v. Jackson, 965 A.2d 280, 284 (Pa.Super.
2009).
Thus, once the PCRA court determined that Appellant raised claims that
necessitated a hearing, it was required to appoint counsel to represent
Appellant at that hearing and thereafter. The PCRA court’s failure to do so
constituted reversible error that belies present PCRA counsel’s contention that
this appeal is wholly without merit. See Commonwealth v. Stossel, 17 A.3d
1286, 1290 (Pa.Super. 2011) (“[W]here an indigent, first-time PCRA
petitioner was denied his right to counsel—or failed to properly waive that
right—this Court is required to raise this error sua sponte and remand for the
PCRA court to correct that mistake.”). In my view, this overlooked issue itself
provides a basis to justify the Majority’s decision to deny present PCRA
counsel’s withdrawal request.
Had this appeal followed a dismissal of Appellant’s petition after he
proceeded to his hearing pro se, remanding for the appointment of counsel to
litigate the claims of initial PCRA counsel’s ineffectiveness would be the proper
disposition. See, e.g., Commonwealth v. Betts, 240 A.3d 616, 624-25
(Pa.Super. 2020). However, in another unusual twist, after the hearing but
before the PCRA court dismissed the petition, Appellant retained PCRA
counsel, David J. Shrager, Esquire, who was granted permission to essentially
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begin the PCRA process anew with an amended PCRA petition.2
Attorney Shrager’s petition both added new claims and re-asserted one of the
claims Attorney Robinson opined was without merit, and the PCRA court held
a new hearing on the new petition. As such, Appellant has already, to some
extent, seen his right to the assistance of counsel in prosecuting his first PCRA
petition vindicated. Consequently, I see no need to remand to restart the
proceedings at square one. Cf. Commonwealth v. Bates, 272 A.3d 984,
989 (Pa.Super. 2022) (requiring second PCRA petition to be considered a
timely first petition where the petitioner was denied counsel in connection with
his actual timely first petition).
Rather, I agree with the Majority that, on remand, Appellant should be
afforded the right to pursue, with the assistance of appointed counsel, the
Bradley claims that he raised before Attorney Shrager entered an appearance
and in effect re-initiated these PCRA proceedings. I also agree with my
esteemed colleagues that Appellant must be afforded the opportunity to
litigate those claims free from any ill-effects or unfavorable evidence or rulings
occasioned by the PCRA court’s error in compelling Appellant to present those
claims pro se. See Majority Memorandum at 14-15 (indicating that Appellant
has the right upon remand to relitigate with the assistance of counsel claims
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2 For clarity’s sake, I note that Attorney Shrager was permitted to withdraw
after the petition was denied, and present PCRA counsel, Adam R. Gorzelsky,
Esquire, was appointed to represent Appellant in this appeal.
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addressed in the pro se hearing). Under the unusual facts of this case,
consideration of Appellant’s Bradley claims on a clean slate, with the
assistance of counsel, whether that be present counsel or a fourth appointed
attorney, is the proper remedy for the PCRA court’s prior error in denying
Appellant counsel.
Judges Olson and Colins join this Concurring Memorandum.
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