J-S63003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,              IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

RICHARD DALE HELMS,

                      Appellant                No. 404 MDA 2014


               Appeal from the PCRA Order February 4, 2014
               In the Court of Common Pleas of Berks County
 Criminal Division at No(s): CP-06-CR-0000395-2006, CP-06-CR-0002897-
        2006, CP-06-CR-0002898-2006, CP-06-CR-0004789-2006




COMMONWEALTH OF PENNSYLVANIA,              IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

RICHARD D. HELMS,

                      Appellant                No. 405 MDA 2014


             Appeal from the PCRA Order February 4, 2014
             In the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0002897-2006




COMMONWEALTH OF PENNSYLVANIA,              IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

RICHARD DALE HELMS, SR.,
J-S63003-14



                            Appellant                            No. 406 MDA 2014


               Appeal from the Order Entered February 4, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0002898-2006




COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

RICHARD DALE HELMS, SR.,

                            Appellant                            No. 407 MDA 2014


               Appeal from the Order Entered February 4, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0004789-2006


BEFORE: BOWES, PANELLA, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                  FILED OCTOBER 15, 2014

       Richard Dale Helms, Sr. appeals from the February 4, 2014 order

denying PCRA relief. We reverse and remand for further proceedings.

       Appellant    was     charged     at     four   criminal    actions,   which   were

subsequently consolidated, with various crimes involving the sexual abuse of

four young boys.       During Appellant’s direct appeal, we recited the factual

basis for the charges:
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



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           The charges filed at 395-06 arose out of allegations that
     Appellant sexually molested K.W. from the age of 11 until the
     age of 15. When K.W. was 11, he began visiting Appellant’s farm
     to perform work on weekends and during summers when he was
     not in school. On occasion, K.W. spent the night at the farm,
     sleeping in a trailer behind Appellant’s farmhouse. K.W. testified
     that he and Appellant slept in the same bed during these
     overnight visits.      Two months after K.W. started visiting
     Appellant’s farm, Appellant began fondling K.W.’s penis. In
     addition, six months after K.W.’s visits began, Appellant
     performed oral sex on K.W. and forced K.W. to perform oral sex
     on him. K.W. reported over 20 instances of molestation.

           The charges filed at 2897-06 relate to allegations of
     Appellant’s sexual abuse of A.S.           According to the trial
     testimony, Appellant took A.S. to his farm when A.S. was under
     11 years of age. On two occasions, Appellant lured A.S. into a
     bedroom and instructed him to remove his clothing and lie down
     on his stomach.         Appellant then attempted to have anal
     intercourse with A.S. Although A.S. could not see Appellant’s
     penis, A.S. felt pain inside and outside his buttocks.

           Information    2898-06   involves   Appellant’s  alleged
     molestation of S.S. who was then between six and eight years
     old. The testimony at trial showed that, on several occasions,
     Appellant took S.S. into his bedroom or the trailer behind his
     farmhouse, attempted to kiss S.S. on the lips or cheek, and
     performed oral sex on S.S.         Information 2898-06 also
     encompasses an incident during which K.W. witnessed Appellant
     perform oral sex on K.W.’s nephew, T.G., who was three or four
     years old at the time.

           Finally, the charges filed by the Commonwealth at 4789-06
     related to allegations that Appellant molested a preschooler
     known as J.T. The Commonwealth’s evidence at trial showed
     that, before J.T. was old enough to attend school, his mother
     dropped him off at Appellant’s farm for childcare during the
     hours when she worked. On more than five occasions, Appellant
     took J.T. into a trailer, removed his clothing, and performed oral
     sex on him. J.T. reported Appellant’s abuse after his mother told
     him not to let anyone touch him.




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J-S63003-14



Commonwealth v. Helms, 998 A.2d 1012 (Pa.Super. 2010) (unpublished

memorandum at 3-5).

      On February 6, 2008, Appellant pled guilty to involuntary deviate

sexual intercourse and endangering the welfare of a child as to each victim.

Sentencing was deferred to permit an evaluation by the Sexual Offenders

Assessment Board, and Appellant filed a pre-sentence motion to withdraw

his plea.   After the motion was granted and Appellant was permitted to

change counsel twice, the four criminal cases proceeded to a jury trial.

      On June 25, 2008, a jury found Appellant guilty of multiple sex

offenses, and Appellant was sentenced to 124 years to 248 years

incarceration.   His original appeal was quashed as untimely, but Appellant

successfully obtained reinstatement of his direct appeal rights. We affirmed

and rejected allegations that the sentence was excessive, the trial court

improperly permitted introduction at trial of Appellant’s prior convictions

involving sexual abuse, the trial court incorrectly applied the Rape Shield

Law with respect to prior actions of victim K.W., and a continuance should

have been granted. Id. Our Supreme Court denied allowance of appeal on

October 13, 2010. Commonwealth v. Helms, 8 A.3d 898 (Pa. 2010).

      Appellant filed a timely PCRA petition on September 14, 2011, and

counsel was appointed. On January 10, 2014, PCRA counsel filed a no-merit

letter and petition to withdraw.    On January 10, 2014, the PCRA court

allowed counsel to withdraw and issued a notice of its intent to dismiss the

PCRA petition without a hearing. Appellant responded by filing an amended

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J-S63003-14



PCRA petition, which was dismissed on February 4, 2014.          This appeal

followed. Appellant raises these contentions on appeal:

         A) Whether PCRA court erred when it denied Appellant[’]s pro
         se motion to waive counsel and proceed pro-se without
         conducting a Grazier hearing[?].

         B) Whether PCRA court erred by failing to hold Grazier
         hearing to ensure that Appellant intelligently, knowingly and
         voluntarily waived his right to post conviction representation
         and failing to apply the six areas of inquiry under
         Pennsylvania Rules of Criminal Procedure Rule 121. . . .

Appellant’s brief at i.

      Initially, we note that our Supreme Court has observed that limited

appellate review applies in the PCRA context.    Commonwealth v. Spotz,

84 A.3d 294 (Pa. 2014). As delineated in Commonwealth v. Feliciano, 69

A.3d 1270, 1274-75 (Pa.Super. 2013) (citation omitted),

            Our standard of review of the denial of a PCRA petition is
      limited to examining whether the court's rulings are supported
      by the evidence of record and free of legal error. This Court
      treats the findings of the PCRA court with deference if the record
      supports those findings. It is an appellant's burden to persuade
      this Court that the PCRA court erred and that relief is due.

      In this case, issue two is merely an iteration of the first one.     The

question is whether Appellant invoked his right to proceed pro se and should

have been afforded a hearing to ensure a voluntary and knowing waiver of

his right to counsel. The following procedural background is pertinent. In

his September 14, 2011 pro se PCRA petition, Appellant averred that trial

counsel was ineffective for failing to call defense witnesses, investigate

medical records, and present mitigating evidence during sentencing. He also

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J-S63003-14


said that he did not have a lawyer, could not afford one, and asked “the

court to appoint a lawyer to represent me.” PCRA Petition, 9/14/11, at 7.

On September 22, 2011, Osmer S. Deming, Esquire, was appointed to

represent Appellant. On five occasions, counsel requested continuances to

either file an amended PCRA petition or no-merit letter, and these requests

were granted. In the final order, which was entered July 1, 2013, the court

granted counsel an extension until August 30, 2013, for counsel to file either

a no-merit letter or amended petition.     It also indicated that no further

extensions would be granted.

      On August 12, 2013, Appellant filed a motion seeking to represent

himself.   See Application for Self-Representation, 8/12/13.         Appellant

complained about counsel’s lack of diligence in prosecuting the matter and

also clearly and unequivocally expressed a desire to represent himself. Id. at

¶ 6 (“Defendant believes, and therefore avers that in the interest of Justice,

and his own Interest, it would be better served by Self-Representation[.]”).

He also sought a hearing pursuant to Pa.R.Crim.P. 121, which outlines the

parameters of a waiver-of-counsel colloquy.       Id. at ¶ 7.     Additionally,

Appellant filed a memorandum that contained the law supporting that he

enjoyed a constitutional right to self-representation.   See Memorandum of

Law in Support of Application for Self Representation, 8/12/13.

      On August 19, 2013, Appellant’s request to proceed pro se was denied

on the basis that counsel had been appointed and Appellant was not entitled


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J-S63003-14


to hybrid representation.      Appellant filed a pro se appeal from the

August 19, 2013 order, and thereafter, a number of additional petitions

asking to represent himself.    That appeal was quashed on September 4,

2013. Appellant then sent a letter to the President Judge of Berks County

complaining about the denial of his constitutional right to self-representation

and the PCRA court’s refusal to conduct the appropriate colloquy.

      After these proceedings and well past the August 30, 2013 deadline,

appointed counsel filed what purported to be a no-merit letter.        In that

document, counsel averred that he “sent a letter enclosing an Amended

PCRA Petition to the Defendant.”     No-Merit Letter Pursuant to Finley and

Turner Requesting Leave of Court to Withdraw as Counsel, 1/10/14, at 6.

Counsel continued that, in the letter, counsel instructed Appellant to review

the amended PCRA petition, sign the verification, and return the executed

verification to counsel.    Counsel reported that Appellant had failed to

respond to the letter and return the verification.   Counsel averred that he

could no longer proceed without Appellant’s cooperation, and he sought

withdrawal on that basis.

      The court granted the request to withdraw and cursorily examined the

issues raised in the initial PCRA petition. It issued a notice of its intent to

dismiss the PCRA petition without a hearing. Appellant responded by filing

an amended PCRA petition reasserting his original issues and raising a




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J-S63003-14


number of additional allegations of ineffective assistance of counsel. At that

point, the court dismissed the PCRA proceeding.

      The applicable law regarding the right to self-representation is as

follows. “In all criminal prosecutions the accused has a right to be heard by

himself and his counsel.” 42 Pa.C.S. § 2501(b). The right to proceed pro se

is not absolute.   Commonwealth v. Clyburn, 42 A.3d 296 (Pa.Super.

2012). Rather, a “defendant's request to proceed pro se must be timely and

unequivocal, and not made for purpose of disruption or delay.” Id. at 299

(citing Commonwealth v. Davido, 868 A.2d 431, 438 (Pa. 2005)).

Additionally, the court must conduct an appropriate colloquy to ensure that

the waiver of counsel is knowing, voluntary, and intelligent.        Clyburn,

supra.

      Herein, the request to proceed pro se was absolutely clear and

unequivocal.   Appellant filed a petition seeking self-representation and an

accompanying memorandum that provided legal citation referencing his

constitutional right to do so. Appellant’s request was also timely filed since,

when the petition invoking the right to self-representation was filed, counsel

had performed no action. Thus, the request was not interposed for delay; to

the contrary, it was presented to advance this matter, which was languishing

due to counsel’s dilatory conduct.

      Moreover, the PCRA court committed legal error when it denied

Appellant that right.   It denied the petition based upon the position that


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J-S63003-14


Appellant had counsel and was not entitled to hybrid representation.

However, Appellant was not seeking hybrid representation.       He asked to

represent himself and have counsel removed.        The PCRA court further

indicated in its Pa.R.A.P. 1925(a) opinion that Appellant’s issues are moot

since Appellant is now proceeding pro se. However, this issue is not moot

because Appellant has never obtained proper review, in the first instance, of

the issues raised in his amended PCRA petition, which counsel belatedly

sought to file.

      For two years, counsel failed to perform any action in this matter,

except to file extensions.    When Appellant repeatedly and emphatically

asked to proceed pro se to file the amended PCRA petition that counsel was

unable to complete, he was denied that right.    In 2014, two and one-half

years after the initial petition was filed, counsel obtained withdrawal based

upon an utterly defective no-merit letter.

      Specifically, Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc),

govern the procedure for withdrawal of court-appointed counsel for purposes

of post-conviction proceedings.     “Independent review of the record by

competent counsel is required before withdrawal is permitted” in the PCRA

setting. Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa.Super. 2011)

(quoting Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)).

That independent review requires:


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J-S63003-14


       1) A “no-merit” letter by PCRA counsel detailing the nature and
       extent of his review;

       2) The “no-merit” letter by PCRA counsel listing each issue the
       petitioner wished to have reviewed;

       3) The PCRA counsel's “explanation”, in the “no-merit” letter, of
       why the petitioner's issues were meritless;

       4) The PCRA court conducting its own independent review of the
       record; and

       5) The PCRA court agreeing with counsel that the petition was
       meritless.

Widgins, supra at 818 (quoting Pitts, supra at 876 n.1).1

       In this case, counsel neither outlined the parameters of his review of

the record, nor did counsel provide any analysis of the merits of the issues

raised in the initial PCRA petition and the amended PCRA petition. Instead,

counsel stated that he was unable to discharge his duties due to Appellant’s

lack of cooperation. The letter indicates an amended PCRA petition was to

be filed, and, thus, it actually supports that there were issues of arguable

merit to raise before the PCRA court.

       Accordingly, we reverse the denial of PCRA relief and remand for the

conduct of a proper waiver-of-counsel colloquy.     Appellant thereafter shall

have the right to file an amended PCRA petition.



____________________________________________


1
  There are additional requirements that are not pertinent herein.         See
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).



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J-S63003-14


      Order reversed.     Case remanded with directions.   Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014




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