J-S78039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 GLENN MCDANIEL                            :
                                           :
                      Appellant            :   No. 1354 EDA 2018

                 Appeal from the PCRA Order April 24, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003322-2011


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                    FILED JANUARY 15, 2019

      Appellant, Glenn McDaniel, appeals pro se from the order entered in the

Court of Common Pleas of Philadelphia County dismissing his first petition for

relief filed under the Post Conviction Relief Act (“PCRA”). Since the record is

unclear as to whether Appellant was deprived of his rule-based right to counsel

at critical times during the PCRA process, we vacate the order and remand for

further proceedings consistent herewith.

      The PCRA court aptly sets forth the pertinent procedural history of this

matter, as follows:

      Defendant [hereinafter “Appellant”], Glenn McDaniel, was charged
      . . . with, inter alia, murder, generally, and possession of an
      instrument of crime, generally, following an incident that occurred
      on October 26, 2010, during which he killed Mr. Ray Santiago by
      intentionally running over him several times with a tow truck
      during a dispute between rival tow truck companies. Appellant
      was tried before [the trial court] sitting without a jury, in March
      of 2012, and was convicted of first-degree murder and possessing

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S78039-18


      an instrument of crime, generally. On March 28, 2012, Appellant
      received the mandatory sentence of life imprisonment without
      parole on the first-degree murder conviction. A verdict without
      further penalty was entered on the weapons charge.

      Following the imposition of sentence, Appellant filed a post-
      sentence motion, which was denied by operation of law.
      Subsequent thereto, Appellant filed a notice of appeal and a
      requested Pa.R.A.P. 1925(b) statement. On December 4, 2013,
      the Superior Court affirmed the judgment of sentence. (2489 EDA
      2012). Appellant thereafter filed a petition for allowance of
      appeal, which the Pennsylvania Supreme Court denied on June
      11, 2014. (646 EDA 20130).

      On August 4, 2014, Appellant filed a pro se petition pursuant to
      the Post Conviction Relief Act (hereinafter PCRA), 42 Pa.C.S. §
      9541 et. seq. He thereafter filed a pro se supplemental PCRA
      petition on April 29, 2016. Counsel was appointed to represent
      him and on April 6, 2017, [privately-retained] counsel filed an
      amended petition. On January 23, 2018, [the PCRA court,
      claiming to have carefully and conscientiously] reviewed the entire
      record, including the Commonwealth’s Motion to Dismiss, sent
      Appellant a Pa.R.Crim.P. 907 Notice of Intent to Dismiss. On April
      24, 2018, [again claiming to have carefully and conscientiously
      reviewed the record], the [PCRA court] issued an order denying
      Appellant PCRA relief without a hearing. Appellant thereafter filed
      [pro se this] timely notice of appeal.

PCRA Court Opinion, 5/8/18, at 1-2.

      In Appellant’s pro se appellate brief, he raises several issues alleging

ineffective assistance of PCRA counsel in preparation of the amended petition,

in failing to file objections to the PCRA court’s Rule 907 Notice, and in

abandoning Appellant in this PCRA appeal. For its part, the Commonwealth

does not oppose a remand for the purpose of determining whether counsel

should be appointed, as it acknowledges there is no indication of record that

counsel filed a motion to withdraw from representation or otherwise sought to

comply with the requirements of Commonwealth v. Finley, 550 A.2d 213

                                      -2-
J-S78039-18



(Pa. Super. 1988) (en banc) that counsel show no non-frivolous issue could

be raised on Appellant’s behalf.

       The law is well settled that a petitioner has a rule-based right to counsel

under the PCRA on a first petition, and that the right extends throughout the

appellate process. See Commonwealth v. Adams, 350 A.2d 820 (Pa. 1976)

(wherein the Supreme Court replaced the statutory right to collateral review

counsel with a rule-based right to counsel).       A petitioner is entitled to the

assistance of counsel to guarantee that he has “at least one meaningful

opportunity to have [his] issues reviewed.” Commonwealth v. Karanicolas,

836 A.2d 940, 945 (Pa.Super. 2003) (citations and internal quotation marks

omitted).   That right “extends throughout the post-conviction proceedings,

including   any   appeal   from    the    disposition   of   the   PCRA   petition.”

Commonwealth v. Smith, 121 A.3d 1049, 1053 (Pa.Super. 2015);

Pa.R.Crim.P. 904(F)(2).

      The record shows that upon the filing of Appellant’s pro se PCRA petition,

the PCRA court appointed counsel to represent him.             Shortly thereafter,

however, Appellant hired privately retained counsel, who filed an amended

petition on his behalf.

      As noted above, the PCRA court eventually issued a Rule 907 Notice to

Dismiss to Appellant through privately retained counsel.             Nevertheless,

Appellant filed a pro se “Motion for Extension of Time To File Objections to the

Court’s Rule 907 Notice.”     Nowhere in the pro se motion does Appellant

indicate why he is acting pro se. The PCRA court’s next filing was its April 24,

                                         -3-
J-S78039-18



2018 order dismissing Appellant’s first PCRA petition. In a footnote to the

order, the PCRA court instructs that “Petitioner may proceed pro se or with

retained counsel; no new counsel is to be appointed. . . .”                Appellant

thereafter filed pro se a timely notice of appeal.

       Nowhere does this record establish that the PCRA court permitted

privately retained counsel to withdraw from representation or if counsel simply

abandoned Appellant. The record also fails to show if the PCRA court made a

determination as to whether Appellant qualified for appointment of counsel for

purposes of responding to the Rule 907 Notice to Dismiss and filing an appeal

to this Court, or if, instead, Appellant had waived his rule-based right to

counsel by such time. See, e.g., Commonwealth v. Robinson, 970 A.2d

455, 459 (Pa.Super. 2009) (finding valid waiver of rule-based right to counsel

where colloquy demonstrates that the petitioner understood “(1) his right to

be represented by counsel; (2) that if he waived this right, he will still be

bound by all normal procedural rules; and (3) that many rights and potential

claims may be permanently lost if not timely asserted”).

      Accordingly, Appellant appears to have been deprived of counsel at

several critical stages of the litigation of his first PCRA petition to his prejudice,

such that the order denying relief must be vacated and the case remanded.

Upon remand, the PCRA court should first determine whether Appellant

qualifies for the appointment of counsel for purposes of responding to the

PCRA court’s Rule 907 Notice.




                                        -4-
J-S78039-18



      In the event Appellant does not qualify for appointed counsel, and opts

not to retain new private counsel, he should be fully advised of the perils of

proceeding pro se. If, instead, Appellant qualifies for appointed counsel and

does not opt for a Grazier hearing where he waives his right to counsel in

favor of representing himself, counsel should be appointed.

      The PCRA court shall thereafter afford Appellant sufficient time in which

to offer a response to the court’s Rule 907 Notice, including allegations, if any,

of prior PCRA counsel’s ineffectiveness in preparing Appellant’s amended

petition.   If counsel seeks, instead, to withdraw from representation at any

time prior to completing litigation of Appellant’s first PCRA petition through

the entire appellate process, he or she must file a petition to withdraw and a

“no merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988) and Finley, supra.

      Order vacated. Case remanded for proceedings consistent herewith.

Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/19




                                      -5-
