J-S57020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KELLY SPILLMAN

                            Appellant               No. 3366 EDA 2014


                 Appeal from the PCRA Order November 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0808261-2006


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                              FILED October 6, 2015

       Kelly Spillman appeals, pro se, from the order entered on November 7,

2014, in the Court of Common Pleas of Philadelphia County granting in part

and denying in part his amended first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.             Because no

Grazier1 hearing was held, we are required to remand this matter to the

PCRA court for a formal determination whether Spillman’s request to

proceed pro se is knowing, voluntary and intelligent.

       Briefly, Spillman was convicted in 2007 of a variety of charges2

involving his high-speed flight from Philadelphia police after they determined
____________________________________________


1
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
2
 Aggravated assault, 18 Pa.C.S. § 2702(a)(1); resisting arrest, 18 Pa.C.S. §
5104; criminal mischief, 18 Pa.C.S. § 3304(a)(1); simple assault, 18 Pa.C.S.
(Footnote Continued Next Page)
J-S57020-15



Spillman was occupying a stolen pickup truck. The chase included Spillman

driving the wrong way on I-95 before crashing into a police cruiser. Spillman

represented himself at trial, apparently claiming he was a graduate of

Fordham University Law School.            Spillman’s counseled direct appeal, nunc

pro tunc, afforded him no relief. Spillman filed the instant PCRA petition, pro

se, on August 24, 2012. Among his claims was an assertion he was serving

an illegal sentence on the charge of criminal mischief.             Spillman was

appointed counsel who filed an amended petition arguing Spillman’s

convictions of reckless endangerment (REAP) and simple assault should have

merged with his conviction of aggravated assault. The amended petition did

not raise the claim regarding criminal mischief. By order dated November 7,

2014, the PCRA court agreed that the simple assault conviction merged with

the aggravated assault conviction and vacated the simple assault sentence

including the associated costs and fines. However, the PCRA court denied

Spillman relief regarding merger of REAP and aggravated assault.

      Spillman filed a timely appeal and on November 25, 2014, Spillman

sought in forma pauperis status and informed the court of his desire to

proceed pro se.        However, the certified record contains no order granting




                       _______________________
(Footnote Continued)

§ 2701(a); recklessly endangering another person, 18 Pa.C.S. § 2705; and
fleeing or eluding, 75 Pa.C.S. § 3733.




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Spillman the right to proceed pro se nor granting appointed counsel leave to

withdraw. Additionally, as noted above, no Grazier hearing was held.3

       We note that case law has consistently held that in a first PCRA

petition, a Grazier hearing is required prior to allowing a petitioner to

represent him/herself.       See Commonwealth v. Figueroa, 29 A.3d 1177

(Pa. Super. 2011). Additionally, while we recognize that Spillman requested

to proceed pro se in his November 25, 2014, application to proceed in forma

pauperis, we liken that request to the situation in Figueroa, supra, wherein

the petitioner checked the box on the PCRA form indicating he wished to

proceed pro se. Such perfunctory written requests cannot take the place of

a Grazier hearing.

       Said Grazier hearing is to be held within 45 days of receipt of this

order. The trial court shall enter its order and ensure the certified record is

returned to this Court within 20 days of the Grazier hearing,.          If new

counsel is appointed, counsel shall file either an advocate’s brief or a

Turner/Finley4 no merit letter, with this Court, within thirty days of

____________________________________________


3
  The Grazier hearing is not a mere formality. Although the certified record
indicates that Spillman was examined and determined to be competent to
stand trial, at sentencing, on December 17, 2007, Spillman denied being a
graduate of Fordham University Law School as well as being Kelly Spillman.
He claimed to be someone named Raymond Frank. See N.T. Sentencing,
12/7/2007, at 7.
4
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A,2d 213 (Pa. Super. 1988) (en banc).



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appointment. The Commonwealth shall have thirty days from said filing to

file a response.   If appointed counsel files a no merit letter along with a

petition to withdraw, Spillman shall have thirty days thereafter to file his pro

se response. If Spillman is allowed to proceed pro se, the PCRA court shall

immediately notify our Court and we will decide the matter based upon filed

briefs.

      This matter is remanded for proceedings consistent with this decision.

Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




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