J-S21023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER PITZARELLA                     :
                                               :
                       Appellant               :   No. 1260 WDA 2019

                  Appeal from the Order Entered July 31, 2019
    In the Court of Common Pleas of Washington County Criminal Division at
                       No(s): CP-63-CR-0001375-2013


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

JUDGMENT ORDER BY DUBOW, J.:                               FILED MAY 22, 2020

       Appellant, Christopher Pitzarella, appeals pro se from the July 31, 2019

Order entered in the Washington County Court of Common Pleas denying his

Motion for Time Credit and Corrected Commitment. After careful review, we

vacate and remand.

       On July 29, 2014, Appellant pleaded guilty to one count of Robbery-

Threat of Immediate Serious Injury, 18 Pa.C.S. § 3701(a)(1)(ii). That same

day, the trial court sentenced Appellant to a term of 11 1/2 to 23 months’

incarceration followed by 5 years’ probation.        The court awarded Appellant

credit for time served and ordered Appellant to obtain drug and alcohol

treatment.1

____________________________________________


1Appellant also entered guilty pleas at Docket Numbers 983-2013 and 3041-
2013 to charges of Robbery and Access Device Fraud for which the court
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        Appellant violated his parole, and the trial court resentenced him, in

2015, 2016, and 2018. Relevant to the instant appeal, on June 18, 2018, the

trial court revoked Appellant’s probation and imposed a sentence of 5 to 10

years’ incarceration.      The court awarded Appellant credit for time served,

which the Department of Corrections calculated as 792 days. 2 Appellant did

not file a direct appeal from his Judgment of Sentence. Appellant’s Judgment

of Sentence, thus, became final on July 18, 2018, upon expiration of the time

to file a direct appeal. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).

        On July 9, 2019, Appellant filed pro se a Motion for Time Credit and

Corrected Commitment.3             In it, he claimed that the Commonwealth

undercounted his time served when awarding his credit.4 Motion, 7/9/19. He

asserted entitlement to an additional 671 days for time served. Id. On July

31, 2019, the trial court denied Appellant’s Motion.

        This appeal followed.5 Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.
____________________________________________


imposed concurrent terms of 11 1/2 to 23 months’ incarceration and 12
months’ probation, respectively.
2The court also revoked Appellant’s sentence at Docket Number 983-2018
and resentenced Appellant to 10 years’ probation.

3   He also filed this Motion at Docket Number 983-2018.

4 A challenge to the trial court’s failure to award credit for time served prior
to sentencing involves the legality of a sentence. Commonwealth v.
Menezes, 871 A.2d 204, 207 (Pa. Super. 2005).

5Appellant has only appealed from the denial of his Motion for Time Credit
and Corrected Commitment at Docket Number 1375-2013.

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      Appellant raises the following issues on appeal:

      1. Is the court abusing its discretion in not awarding [A]ppellant
      time credit for time spent in custody prior to sentencing thus
      making [A]ppellant[’]s sentence illegal? Specifically, on original
      case and (3) probation revocations where [A]ppellant spent time
      in custody and the court failed to award him credit in accordance
      with 42 Pa.C.S. § 9760(2).

      2. Is the court abusing its discretion in denying [A]ppellant’s
      [M]otion for [T]ime [C]redit as already granted? It is well-
      established that all motions filed after judgment of sentence is
      final are to be construed as [PCRA] petitions. Thus, [A]ppellant
      has a (DC16E-Sentence Status Summary) stating in Sentence
      Structure Commitment Credit none of the time being asked for
      was credited.

Appellant’s Brief at 5.

      Before we consider the merits of Appellant’s claim, we must address

whether this appeal is properly before us.

      It is well-settled that a trial court is to construe any motion filed after a

defendant’s judgment of sentence becomes final as a petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011).

Accordingly, the trial court was required to treat Appellant’s Motion for Time

Credit and Corrected Commitment as a first PCRA Petition, but failed to do so.

      A petitioner has an absolute right to counsel on his first PCRA petition,

“regardless of the merits of his claim.”     Commonwealth v. Lindsey, 687

A.2d 1144, 1145 (Pa. Super. 1996); see also Pa.R.Crim.P. 904(C). “Where

that right has been effectively denied by the action of court or counsel, the

petitioner is entitled to a remand to the PCRA court for appointment of counsel


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to prosecute the PCRA petition.”           Commonwealth v. Kenney, 732 A.2d

1161, 1164 (Pa. 1999) (citation omitted); see also Commonwealth v.

White, 871 A.2d 1291, 1294 (Pa. Super. 2005). “[W]here an appellant files

his first PCRA Petition without the assistance of counsel, the appellant shall be

permitted to file an amended PCRA Petition with the assistance of counsel.”

Commonwealth v. Tedford, 781 A.2d 1167, 1170 (Pa. 2001) (citation

omitted). “[T]he [PCRA] court’s power to dismiss a first PCRA petition must

yield to the [a]ppellant’s rights to counsel.” Commonwealth v. Walker, 721

A.2d 380, 382 (Pa. Super. 1998).

       This Court’s review of the trial court docket reveals that the court did

not appoint PCRA counsel for Appellant.          Thus, we vacate and remand for

further proceedings. See Kenney, 732 A.2d at 1165 (the Superior Court has

no original jurisdiction in PCRA proceedings; if record is insufficient to

adjudicate allegations, case should be remanded for further inquiry). Upon

remand, the PCRA court must appoint counsel to assist Appellant; such

assistance may include the filing of an amended PCRA petition. If Appellant

wishes to proceed pro se, a Grazier6 hearing is required.

       Order vacated.      Case remanded for proceedings consistent with this

Judgment Order. Jurisdiction relinquished.




____________________________________________


6   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2020




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