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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
GABRIEL MARTINEZ-LOPEZ                  :
                                        :
                   Appellant            :   No. 2319 EDA 2017

                 Appeal from the PCRA Order June 15, 2017
 In the Court of Common Pleas of Montgomery County Criminal Division at
                     No(s): CP-46-CR-0003402-2010


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                         FILED JANUARY 16, 2018

      Gabriel Martinez-Lopez appeals from the denial of his first PCRA

petition.   We vacate the order in question, and remand for proceedings

consistent with this memorandum.

      Appellant was convicted of first-degree murder and related offenses in

connection with the beating death of Jose Armando Cazares-Olarte. On April

9, 2016, around the same time that his wife reported him missing, police

found Mr. Cazares-Olarte’s body outside a home located on Walker Lane in

King of Prussia, and concluded that he was murdered elsewhere and was left

at the location in question.     Through cell phone records, investigators

ascertained that Appellant was the last person with whom the victim had

spoken. Police interviewed Appellant on April 27, 2010, and Appellant

confessed that he had killed Mr. Cazares-Olarte at the request of the victim’s

wife, who was Appellant’s paramour.     Appellant had enlisted the aid of his
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brother, and they kidnapped the victim at gunpoint, and drove Mr. Cazares-

Olarte to Appellant’s garage, where Appellant struck him in the head with a

stone several times.         The two men then transported the victim’s body to

Walker Lane.     Appellant’s brother confirmed his role in the crime, and the

victim’s wife also confessed to conspiring with Appellant to kill her husband.

      On     March     27,    2014,   the    court   sentenced   Appellant    to   life

imprisonment, and we subsequently rejected Appellant’s position that his

confession should have been suppressed, affirming the judgment of

sentence. Commonwealth v. Martinez-Lopez, 151 A.3d 1131 (Pa.Super.

2016) (unpublished memorandum).              Appellant filed a timely pro se PCRA

petition,    counsel    was     appointed,    and,   after   successfully    obtaining

continuances to file an amended PCRA petition, counsel elected to present a

petition to withdraw and no-merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988).

      Soon after the withdrawal request was made, Appellant filed a motion

asking that copies of the contents of his record be forwarded to him, either

by PCRA counsel or the court.         On May 26, 2017, the PCRA court denied

Appellant’s request for the record, concluding that it was too costly to copy

the record and send it to Appellant, and granted counsel’s request to

withdraw.     The PCRA court also issued notice of its intent to dismiss the

PCRA petition without a hearing. On June 15, 2017, Appellant’s petition was

dismissed.     Appellant filed the present appeal, which is timely under the

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prisoner mailbox rule, as the notice of appeal was placed in the prison mail

system on July 12, 2017.     See Commonwealth v. Jones, 700 A.2d 423

(Pa. 1997)

      In this appeal, Appellant presents one issue for our review: “Whether

The Lower court committed a manifest abuse of discretion and committed

reversible error in denying Appellant’s PCRA Petition when the Honorable

court denied The Petitioner access to all Pre Trial, Trial and Post Trial

records, PA being a court of Records.” Appellant’s brief at 3.

      Appellant notes that he raised one issue in his pro se PCRA petition,

which related to whether trial counsel was ineffective for failing to

investigate tire marks that were present where the victim’s body was

discovered. He remembered this possible basis for relief but maintains that

he needs the record to ascertain if other issues could be raised in an

amended PCRA petition.       Appellant astutely recognizes that this PCRA

petition essentially represents his sole opportunity to obtain review,

continuing with the assertion that he “needs a complete copy of His file . . .

so that any/all issues could be raised in This His initial P.C.R.A. Petition[.]”

Appellant’s brief at (unnumbered page) 9.

      We conclude that Appellant’s prayer for relief is meritorious. Since the

PCRA court permitted counsel to withdraw, Appellant has the right to

proceed pro se. This right is completely meaningless if Appellant does not

have access to the pertinent documents in his record, which, at a minimum

must include copies of his transcripts.

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       As we articulated in Commonwealth v. Ballem, 482 A.2d 1322, 1323

(Pa.Super. 1984) (footnote omitted):

       It is well-established that constitutional due process and equal
       protection require that a criminal defendant be afforded copies
       of his trial transcripts in order to effectively prosecute an
       appeal. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100
       L.Ed. 891 (1956). Our Supreme Court has long upheld this
       procedural right and has attributed to the state the
       responsibility of providing a defendant with copies of the
       necessary proceedings so that appellate rights might be
       actively pursued. See Commonwealth v. Goldsmith, 452
       Pa. 22, 304 A.2d 478 (1973); Commonwealth v. DeSimone,
       447 Pa. 380, 290 A.2d 93 (1972); Commonwealth v. Smith,
       285 Pa.Super. 460, 427 A.2d 1378 (1981).

Simply put, it is impossible for Appellant to represent himself, even though

he has that constitutional right now that counsel has withdrawn, if he cannot

review the meaningful portions of his record.

       While    the   Commonwealth         posits   that   Appellant   has   not   been

prejudiced by the challenged ruling since there are no issues of merit that

could be presented in a PCRA petition,1 this position places the cart before

the horse.      Without the record to review, Appellant is prevented from

investigating whether there are indeed errors requiring the grant of some

form of PCRA relief.        A lack of prejudice cannot be demonstrated until

Appellant reviews the record, presenting what he believes to be meritorious


____________________________________________


1 In its opinion, the PCRA court merely addresses the issue raised in the
initial PCRA petition, but fails to justify why it did not grant Appellant access
to his record.



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issues for purposes of post-conviction review, and the courts examine those

issues and conclude that they do not warrant PCRA relief.

      Hence, Appellant must be granted access to copies of his trial

transcripts to determine if he wishes to present an amended pro se PCRA

petition, one that contains record-based contentions beyond the one he was

able to recollect. If Appellant presents a plausible claim that he needs other

portions of his record to pursue an issue, he likewise must be accorded

copies of those sections of his record. Defense counsel is a likely source of

the pertinent documents. Nevertheless, if the transcripts are not available

from counsel, then the court must order that copies be made of the

transcripts in the certified record and that such copies be sent to Appellant.

Since he asked for his record before PCRA relief was denied and when he

was representing himself, Appellant must be accorded the opportunity to file

an amended PCRA petition after he reviews the relevant documents.

      Order vacated.   Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2018




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