J-S72005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DEATHRICE DWAYNE GRAY

                        Appellant                    No. 41 MDA 2016


        Appeal from the Judgment of Sentence December 11, 2015
            In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0001900-2014


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:              FILED SEPTEMBER 19, 2016

      Appellant, Deathrice Dwayne Gray, appeals pro se from the judgment

of sentence entered in the Luzerne County Court of Common Pleas, following

his bench trial conviction for possession of a controlled substance (heroin)

(35 P.S. § 780-113(a)(16)).        On February 12, 2014, police executed a

search warrant at a residence in Hazleton, Pennsylvania. Police discovered

money, drugs, and drug paraphernalia in the residence in close proximity to

Appellant.   The Commonwealth charged Appellant with possession of a

controlled substance with the intent to deliver (“PWID”) and simple

possession. Appellant initially retained private counsel to defend against the

charges. Private counsel filed a motion to withdraw on November 24, 2014,

claiming Appellant had not honored their fee agreement and citing

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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Appellant’s complaints that he could no longer afford private counsel. The

court granted counsel’s motion to withdraw and directed Appellant to apply

for representation with the Public Defender’s Office. Appellant complied and

obtained representation from the Public Defender.       Several months later,

however, the Public Defender sought to withdraw due to a conflict of

interest.   Consequently, on April 7, 2015, the court appointed conflict

counsel.    Conflict counsel subsequently withdrew his appearance citing a

breakdown in the attorney/client relationship.       According to Appellant,

conflict counsel failed to communicate with him; so, Appellant borrowed

money from family and friends to retain private counsel for trial.

      Appellant proceeded to a bench trial on October 23, 2015. The court

convicted Appellant of simple possession on October 26, 2015.              On

December 11, 2015, the court sentenced Appellant to 6-23 months’

imprisonment.     At the conclusion of the sentencing hearing, the court

permitted counsel to withdraw.     Appellant timely filed a pro se notice of

appeal on December 24, 2015.       On January 20, 2016, the court ordered

Appellant to file a Pa.R.A.P. 1925(b) concise statement, which Appellant

timely filed pro se on January 27, 2016. On February 24, 2016, Appellant

filed a pro se motion in the trial court requesting appointment of counsel for

appeal and claiming he cannot afford counsel. The court did not rule on the

motion. On April 21, 2016, Appellant filed an application for appointment of

counsel in this Court, which this Court denied without prejudice, directing


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Appellant to seek relief in the trial court.1

       Pennsylvania Rule of Criminal Procedure 122 provides:

          Rule 122. Appointment of Counsel
          (A) Counsel shall be appointed:
                                     *    *    *
                (2) in all court cases, prior to the preliminary hearing
          to all defendants who are without financial resources or
          who are otherwise unable to employ counsel;
                (3) in all cases, by the court, on its own motion, when
          the interests of justice require it.

          (B) When counsel is appointed,
                                 *    *   *
              (2) the appointment shall be effective until final
          judgment, including any proceedings upon direct appeal.

Pa.R.Crim.P. 122(A), (B). Under paragraph (A)(3), the court has authority

to appoint counsel regardless of eligibility when the interests of justice

require it. Pa.R.Crim.P. 122, Comment. Rule 122 “authorizes the court to

conduct case-by-case evaluations of individual defendants’ circumstances in

order to ascertain whether counsel should be appointed.” Commonwealth

v. Cannon, 954 A.2d 1222, 1227 (Pa.Super. 2008), appeal denied, 600 Pa.

743, 964 A.2d 893 (2009) (internal citation omitted). Instantly, the record

shows Appellant had the benefit of court-appointed counsel during some

earlier proceedings.      Although Appellant borrowed money from family and

friends to hire private counsel for trial, Appellant complains he no longer has

the resources to secure counsel for this appeal.         In light of Appellant’s
____________________________________________


1
   The Commonwealth indicates that Appellant filed another motion in the
trial court for appointment of counsel on May 18, 2016.



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allegations of indigency and repeated requests for counsel, we remand for a

determination of Appellant’s indigency status and consideration of the

appointment of counsel in accordance with Rule 122. See Pa.R.Crim.P. 122;

Cannon, supra. If the court determines Appellant is entitled to counsel, the

court shall appoint counsel; and appointed counsel must file a Rule 1925(b)

statement on Appellant’s behalf. The court can issue a supplemental Rule

1925(a) opinion, and the parties shall have the opportunity to file new

appellate briefs. If the court is convinced Appellant is not entitled to counsel

under Rule 122(A)(2) or (A)(3), then the appeal will proceed pro se. The

trial court shall notify this Court of its decision within 30 days.

      Case remanded with instructions. Panel jurisdiction is retained.




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