J-S43004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    BILLY RAY BOGGS

                             Appellant                No. 1178 WDA 2017


               Appeal from the PCRA Order Entered July 12, 2017
             In the Court of Common Pleas of Westmoreland County
                Criminal Division at No.: CP-65-CR-0002500-2015


BEFORE: STABILE, DUBOW, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 22, 2018

        Appellant Billy Ray Boggs pro se appeals from the July 12, 2017 order

of the Court of Common Pleas of Westmoreland County, which denied his

request for collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-46. Upon review, we vacate and remand.

        The facts and procedural history of this case are undisputed. Briefly, on

September 11, 2015, Appellant pled guilty to first-degree murder, third-

degree murder and abuse of a corpse in connection with the death of thirty-

four-year-old Thomas Guercio, whom Appellant killed by hitting him in the

head with a hammer and stabbing him in the chest with a steak knife.1

Consistent with the terms of his negotiated guilty plea, the trial court



____________________________________________


1   18 Pa.C.S.A. §§ 2502(a), 2502(c), and 5510, respectively
J-S43004-18



sentenced Appellant to life imprisonment without the possibility of parole. See

N.T. Guilty Plea, 9/11/15, at 41-44. Appellant did not file a direct appeal.

       On August 12, 2016, Appellant pro se filed the instant PCRA petition,

alleging, inter alia, claims for ineffective assistance of trial counsel and

challenging the legality of his guilty plea. The PCRA court appointed Attorney

Emily Smarto to represent Appellant and ordered her to “file either an

[a]mended PCRA [p]etition or a [m]otion to [w]ithdraw as [c]ounsel and a

[Turner/Finley2 n]o-[m]erit letter.” PCRA Court Order, 8/18/16. Following

the PCRA court’s grant of two extensions, Attorney Smarto filed a no-merit

letter on November 4, 2016.            Although Attorney Smarto concluded that

Appellant’s PCRA claims were “wholly frivolous”, she did not file a motion to

withdraw as counsel. No-Merit Letter, 11/4/16, at 4.

       On December 21, 2016, the PCRA court issued a notice of its intention

to dismiss Appellant’s petition under Pa.R.Crim.P. 907. On January 6, 2017,

Appellant pro se filed a response to the Rule 907 notice. In his response,

Appellant sought the PCRA court’s leave to proceed pro se and requested the

court to hold a Grazier3 hearing.              On January 24, 2017, the PCRA court

ordered Attorney Smarto to forward to Appellant “all case materials relating”



____________________________________________


2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (requiring a
colloquy to determine if the petitioner was knowingly, intelligently, and
voluntarily relinquishing his right to counsel).

                                           -2-
J-S43004-18



to this case and granted Appellant an additional sixty days from the date of

the order to respond to the Rule 907 notice. See PCRA Order, 1/24/17.

       On March 1, 2017, Appellant pro se filed a motion for extension of time

to compel the Commonwealth to turn over additional discovery material. The

PCRA court denied Appellant’s pro se motion on March 7, 2017.4 On March

27, 2017, Appellant filed an amended response to the Rule 907 notice.

       Because of Appellant’s Rule 907 response, the PCRA court scheduled a

hearing to determine the merits of Appellant’s PCRA claims. See PCRA Court

Order, 4/13/17. At the outset of the hearing, Attorney Smarto informed the

PCRA court that Appellant wished to represent himself. N.T. PCRA Hearing,

6/2/17, at 3. The PCRA court denied the request. Id. Following the hearing,

the PCRA court denied Appellant PCRA relief on July 12, 2017. Appellant pro

se appealed to this Court on July 24, 2017. On August 10, 2017, Attorney

Smarto filed a notice of appeal from the PCRA court’s order denying

Appellant’s PCRA petition.

       On August 24, 2017, the PCRA court held a Grazier hearing. Explaining

its reason for holding the hearing, the PCRA court stated:

       For the record, [Appellant] pled guilty in this courtroom on
       September 11, 2015. He subsequently filed a PCRA petition. The
       court appointed Ms. Emily Smarto to represent [Appellant], and
       on July 12, 2017, [Appellant’s] PCRA petition was dismissed by
       this court. Subsequently, Mr. Boggs, [the court has] something
       that is filed in the Clerk of Courts on July 24, 2017, that you had
____________________________________________


4 Even though Appellant was represented by counsel, the PCRA court ruled on
his pro se motion, notwithstanding a prohibition on hybrid representation.
See Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (explaining hybrid
representation is not permitted).

                                           -3-
J-S43004-18


       pro se appealed to the Superior Court. Ms. Smarto then, upon
       discovering that, she filed an appeal from [the PCRA court’s]
       dismissal of your PCRA on August 10, 2017. You had indicated to
       me, Mr. Boggs, that you wanted to represent yourself. I didn’t
       think that was a good idea, but if ultimately that’s what you decide
       to do, then I may be allowing that. So the purpose of our hearing
       today is for me to conduct a Grazier hearing, and that is to
       determine whether you actually understand your rights and
       understand what you’re doing, if you waive your right to an
       attorney

Hearing, 8/24/17, at 2-3 (unnecessary capitalizations omitted).            At the

hearing, Appellant reminded the PCRA court that he had wished to proceed

pro se and that he “did not request counsel to begin with.” Id. at 6. Following

the hearing, the PCRA court permitted Attorney Smarto to move for

withdrawal as counsel and Appellant to represent himself.5 Id. at 11. The

PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal.

       On appeal,6 Appellant raises ten issues for our review.

       [I.] Whether counsel was ineffective for failing to investigate the
       castle doctrine?

       [II.] Whether counsel was ineffective for failing to object or notify
       [Appellant] to the amended information?

       [III.] Whether counsel was ineffective for not withdrawing
       [Appellant’s] plea?

       [IV.] Whether [Appellant] was denied due process of law?


____________________________________________


5 On September 6, 2017, this Court issued a per curiam order granting
Attorney Smarto’s “Motion to Withdraw as Counsel.”
6“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).

                                           -4-
J-S43004-18


      [V.] Whether counsel was ineffective for failing to procure the
      victim[’]s criminal record?

      [VI.] Whether counsel was in collusion and induced [Appellant] to
      plead guilty?

      [VII.] Whether counsel was ineffective for not objecting to hearsay
      testimony?

      [VIII.] Whether counsel was ineffective for not             requiring
      [Appellant] to undergo a mental health examination?

      [IX.] Whether [Appellant] intelligently plead[ed] guilty?

      [X.] Whether the Honorable Rita D. Hathaway committed a
      palpable abuse of discretion in forcing [Appellant] to take
      conflicted and ineffective counsel during the evidentiary hearing?

Appellant’s Brief at ix-x (unpaginated) (unnecessary capitalizations omitted).

      We first address Appellant’s last issue, as it is dispositive of the instant

appeal. Appellant claims that the PCRA court denied him the opportunity to

proceed pro se, in particular at the June 2, 2017 evidentiary hearing. Upon

review of the record, we agree.

      In Commonwealth v. Robinson, 970 A.2d 455 (Pa. Super. 2009) (en

banc), we held that “in any case where a defendant seeks self-representation

in a PCRA proceeding and where counsel has not properly withdrawn, a

[Grazier] hearing must be held.” Id. at 456 (emphasis added). Particularly,

“a colloquy [under Pa.R.Crim.P. 121(A)] must be held by the PCRA court of its

own accord . . . once the defendant has expressed a desire to proceed pro

se as long as PCRA counsel has not properly withdrawn by complying

with the dictates of Turner/Finley.”            Robinson, 970 A.2d at 460

(emphasis added).




                                      -5-
J-S43004-18



       Here, as detailed earlier, Appellant unequivocally moved to proceed pro

se on January 6, 2017, approximately five months prior to the June 2, 2017

evidentiary hearing. At the time of Appellant’s request, his counsel had not

moved to withdraw her appearance in the PCRA court, despite her filing a no-

merit letter. Thus, consistent with the dictates of Robinson, and under the

circumstances of the instant case, the PCRA court had a duty to hold a Grazier

hearing upon learning of Appellant’s desire to represent himself on January 6,

2017. The fact that the PCRA court held a Grazier hearing on August 24,

2017, after Appellant had appealed the order denying him PCRA relief does

not satisfy the requirements of Robinson. We, therefore, conclude that the

PCRA court abused its discretion in failing to hold a Grazier hearing upon

learning of Appellant’s desire to proceed pro se. Accordingly, we vacate the

PCRA court’s July 12, 2017 order and remand this case to the PCRA court to

conduct a new evidentiary hearing at which Appellant may proceed to

represent himself.7

       To the extent the Commonwealth relies on Commonwealth v. El, 977

A.2d 1158 (Pa. 2009), to argue that Appellant failed to timely assert his

request for self-representation, we find El distinguishable.      “A criminal

defendant’s right to counsel under the Sixth Amendment includes the

concomitant right to waive counsel’s assistance and proceed to represent

oneself at criminal proceedings.” El, 977 at 1162 (citations omitted). “The
____________________________________________


7 Based on the outcome of this case, we need not address Appellant’s first
nine issues on appeal.

                                           -6-
J-S43004-18



right to waive counsel’s assistance and continue pro se is not automatic

however.” Id. at 1163. “Rather, only timely and clear requests trigger an

inquiry into whether the right is being asserted knowingly and voluntarily.”

Id. (citing Faretta v. California, 422 U.S. 806, 836 (1975) (noting that the

defendant sought to represent himself by way of a clear and unequivocal

declaration asserted weeks before trial)).

      “In Pennsylvania, Rule of Criminal Procedure 121 sets out a framework

for inquiry into a defendant’s request for self-representation.” El, supra at

1162 (citation omitted). “[T]he law is well established that in order to invoke

the right of self-representation, the request to proceed pro se must be made

timely and not for purposes of delay and must be clear and unequivocal.” Id.

at 1163. In other words, a defendant must invoke his constitutional right to

self-representation “before meaningful trial proceedings have begun.”        Id.

(citation omitted).   In a bench trial, “meaningful trial proceedings” begin

“when a court has begun to hear motions which have been reserved for time

of trial; when oral arguments have commenced; or when some other such

substantive first step in the trial has begun.” Id. at 1165. Meaningful trial

proceedings, the Court observed, should be “marked by a substantive, rather

than a pro forma, event.” Id.

      In El, the defendant executed a written waiver of his right to a jury trial

and was represented by counsel during pretrial suppression proceedings.

When the trial court denied the defendant’s motion to suppress, defense

counsel informed the court that the defense was ready to proceed to trial, and

                                      -7-
J-S43004-18



the defendant confirmed on the record that he waived his right to a jury trial.

At this point, the defendant requested to represent himself at trial. The trial

court denied this request, and the case proceeded immediately to trial. The

trial evidence consisted mainly of non-hearsay evidence previously introduced

during the suppression hearing. We affirmed the judgment of sentence. Our

Supreme Court granted the defendant’s petition for allowance of appeal.

Applying the “meaningful trial proceeding” test, the Supreme Court held that

the trial court properly denied the defendant’s request to represent himself

pro se: “Appellant’s request was not merely late. His suppression motion had

been resolved, his jury trial waiver had been accepted, and the admission of

evidence against him was nearly complete.” El, 977 A.2d at 1167.

      Even though El involved a direct appeal, we see no reason why El would

not be applicable in a PCRA context, such as here. Unlike the defendant in El,

Appellant did not tender his request to represent himself last minute and no

meaningful proceedings had commenced when he made the request. Attorney

Smarto had filed a no-merit letter and the PCRA court had issued a Rule 907

notice. Indeed, as noted earlier, approximately five months prior to the June

2, 2017 evidentiary hearing, Appellant informed the PCRA court of his

intention to proceed pro se. The PCRA court failed to act. At the August 24,

2017 hearing, the PCRA court acknowledged that it was aware of Appellant’s

desire to represent himself. See N.T. Hearing, 8/24/17 (“You had indicated

to me, Mr. Boggs, that you wanted to represent yourself. I didn’t think it was




                                     -8-
J-S43004-18



a good idea[.]”).     Accordingly, we conclude that the instant case is

distinguishable from El.

      Order vacated. Case remanded for further proceedings.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2018




                                  -9-
