J-S54020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LUIS ZAYAS CINTRON

                            Appellant                 No. 3189 EDA 2014


                 Appeal from the PCRA Order October 24, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001712-2010


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 13, 2015

        Appellant, Luis Zayas Cintron, appeals pro se from the order

dismissing his pro se, first petition pursuant to the Post Conviction Relief Act

(“PCRA”).      As we conclude that the PCRA court erroneously permitted

appointed counsel to withdraw his appearance, we vacate and remand for

further proceedings.

        Cintron was charged with various crimes arising from allegations that

he had shot his landlord, Francisco Idrovo, in an apparent murder for hire

plot.    After a jury convicted him of attempted homicide, two counts of

aggravated assault, two counts of simple assault, two counts of possessing

instruments of crime, recklessly endangering another person and terroristic
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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threats, the trial court sentenced Cintron to an aggregate term of

imprisonment of 280 months to 600 months.             This Court affirmed the

judgment of sentence, and on September 5, 2013, the Supreme Court of

Pennsylvania denied Cintron’s petition for allowance of appeal.

      On March 26, 2014, Cintron filed the instant pro se petition, raising

multiple issues.     Shortly thereafter, the PCRA court appointed Robert

Brendza, Esq., to represent Cintron throughout the PCRA proceedings.

According to documents subsequently filed by Cintron, a conflict arose

several months later. Cintron demanded to see any amended PCRA petition

before it was filed, but Attorney Brendza refused, asserting that Cintron had

no such right.     See Motion for Removal of Court-Appointed Counsel, filed

9/16/14, at Exhibits A, B.

      Shortly thereafter, on August 29, Attorney Brendza filed a petition to

withdraw as counsel, and attached a copy of his “no-merit” letter to Cintron.

Cintron   responded      by   filing   multiple   documents,   including   the

aforementioned Motion for Removal of Court-Appointed Counsel. The PCRA

court denied Cintron’s motion for removal of counsel on September 16.

      On October 1, Cintron mailed a response to Attorney Brendza’s “no-

merit” letter to the PCRA court.       Cintron appended several letters he had

sent to Attorney Brendza, prior to his petition to withdraw, detailing issues

that Cintron wished to raise.    On the next day, the PCRA court dismissed

Cintron’s letter, stating that the letter constituted an ex parte, pro se


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communication with the court while Attorney Brendza still represented

Cintron. See Order, 10/2/14, at fn. 1.

      Concurrently, the PCRA court filed a notice of intent to dismiss

Cintron’s PCRA petition without a hearing, and noted its intent to grant

counsel’s petition to withdraw. See Notice of Intent to Dismiss, 10/2/14 at

1.   In its notice, the PCRA court noted that it could not address Cintron’s

claim that trial counsel had been ineffective in failing to impeach Idrovo’s

testimony with his contradictory testimony at the preliminary hearing due to

Cintron’s failure to file a certified copy of the preliminary hearing transcript.

See id., at fn.1, p. 11.

      Cintron responded to the notice with pro se objections. Among other

issues, Cintron alleged that Attorney Brendza had been ineffective in failing

to file certified copies of court records and trial transcripts.     Specifically,

Cintron identified Attorney Brendza’s failure to file certified transcripts of the

preliminary hearing.       See Petitioner’s Objections to Notice of Intent to

Dismiss, 10/21/14, at 3-4 (pages in original unnumbered).

      Shortly thereafter, the PCRA court entered an order dismissing

Cintron’s PCRA petition, and granting Attorney Brendza’s petition to

withdraw.   In particular, the PCRA court held that Cintron’s allegations of

Attorney Brendza’s ineffectiveness were “not ripe,” and “procedurally

improper,” and therefore refused to consider any claim of Attorney Brendza’s

ineffectiveness. This timely appeal followed.


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       On appeal, Cintron raises multiple issues for our review. However, we

need not address any save Cintron’s claim that the PCRA court erred in

permitting Attorney Brendza to withdraw.1              As we conclude that neither

Attorney Brendza nor the PCRA court fulfilled the legal requirements for

ending Cintron’s right to counsel, we will vacate the order dismissing

Cintron’s petition and remand for appointment of counsel and further

proceedings.

       The Rules of Criminal Procedure clearly bestow a right to counsel for a

petitioner’s first PCRA petition.              See Pa.R.Crim.P. 904(C); see also

Commonwealth v. Smith, 818 A.2d 494 (Pa. 2003); Commonwealth v.

Guthrie, 749 A.2d 502, 504 (Pa. Super. 2000); Commonwealth v.

Kaufmann, 592 A.2d 691, 696 (Pa. Super. 1991). After being appointed to

represent a first-time petitioner, counsel may only withdraw after following

specific procedures. Our Supreme Court has summarized the procedure for

withdrawal of court-appointed counsel in collateral attacks on criminal

convictions as follows.

       Independent review of the record by competent counsel is
       required before withdrawal is permitted. Such independent
       review requires proof of:

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

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1
  Cintron presents this argument couched in terms of Attorney Brendza’s
ineffectiveness in filing the “no-merit” letter.



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      2) A “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.

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

omitted). Additionally, this Court has added a requirement

      that    PCRA    counsel    who     seeks   to   withdraw     must
      contemporaneously serve a copy on the petitioner of counsel’s
      application to withdraw as counsel, and must supply to the
      petitioner both a copy of the “no-merit” letter and a statement
      advising the petitioner that, in the event that the court grants
      the application of counsel to withdraw, he or she has the right to
      proceed pro se or with the assistance of privately retained
      counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011)

(emphasis omitted; citation omitted).

      Here, Attorney Brendza filed a copy of his “no-merit” letter and served

it upon Cintron.    In his letter, Attorney Brendza identifies, but does not

address, Cintron’s claim that trial counsel was ineffective for failing to

impeach Idrovo with his testimony at the preliminary hearing.       See “No-

Merit” Letter, 8/29/14, at 5-6. This claim was included in Cintron’s pro se

PCRA petition.     See Petition, 3/26/14, at additional page 28.    As such,

Attorney Brendza clearly failed to satisfy the dictates of Pitts.




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      This error was compounded by Attorney Brendza’s failure to file

certified transcripts of the preliminary hearing. As noted above, the PCRA

court refused to address the issue in its order dismissing Cintron’s petition

due to the absence of the transcript.     Thus, the PCRA court did not reach

this claim in its independent review of the record.

      The PCRA court further compounded the error in failing to address

Cintron’s claim of Attorney Brendza’s ineffectiveness in response to Cintron’s

objections to the notice to dismiss.   As the PCRA court now recognizes in its

opinion on appeal, Cintron properly preserved and raised this claim in his

timely objections to the PCRA court’s notice of intent to dismiss.         See

Commonwealth v. Rykard, 55 A.3d 1177, 1186 (Pa. Super. 2012).

Having acknowledged that error, the PCRA court proceeds to address

Cintron’s claim that Attorney Brendza had been ineffective in failing to file

the transcript as follows.

      In support of his PCRA claims, defendant relies on the victim’s
      preliminary hearing testimony. However, the alleged testimony
      is not part of the record in this case. We stress that Defendant
      is under no obligation to provide the Court with a copy of the
      preliminary hearing testimony.            However, Defendant’s
      preliminary hearing occurred in a Magisterial District Court which
      is not a court of record. As such, Defendant’s preliminary
      hearing may not have been recorded, and even if recorded,
      would not have been transcribed absent an affirmative request
      by either the Commonwealth or Defendant. PCRA counsel was
      not counsel of record at the time of the preliminary hearing.
      Because only Defendant cites to the victim’s preliminary hearing
      testimony, we merely indicated in our Notice to Dismiss that it
      was his obligation to supply the Court with a certified transcript
      of the proceeding, if one existed.       See Notice to Dismiss,
      10/2/14, at 11. The record in this case does not contain a

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      transcript of Defendant’s preliminary hearing.     Accordingly,
      Defendant’s argument cannot form a successful basis on appeal.

Opinion on appeal, 2/9/15, at 4.

      The PCRA court’s reasoning is troubling; it essentially required Cintron

to have submitted a pro se filing at a time that the PCRA court was rejecting

his pro se filings on account of Attorney Brendza’s continuing duty to

represent Cintron. However, we need not address the issue, as we conclude

that the PCRA court’s opinion is not an accurate description of the record.

      Contrary to the PCRA court’s assertion, Cintron was not the only party

to cite to the preliminary hearing transcripts. Attorney Brendza’s “no-merit”

letter contains a pin-point cite to the preliminary hearing transcript.   See

“No-Merit” Letter, 8/29/14, at 6.      As we must presume that Attorney

Brendza was following the ethical dictates of the profession, we must

conclude that he at the very least had access to a copy of the transcript.

Thus, contrary to the PCRA court’s discussion quoted above, it was apparent

before the PCRA court filed its notice to dismiss that:   (a) the preliminary

hearing had been recorded; (b) that the recording had been transcribed; and

(c) that Attorney Brendza had cited to a transcript of the preliminary hearing

in a court document.

      Under these circumstances, we conclude that the PCRA court erred in

permitting Attorney Brendza to withdraw, as neither Attorney Brendza, nor

the PCRA court, has addressed the merit of Cintron’s claim that trial counsel




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was ineffective in failing to impeach Idrovo with his preliminary hearing

testimony.2

       Nor are we convinced that this error was harmless. Cintron contends

that Idrovo’s testimony that this was a murder-for-hire plot was integral to

the Commonwealth’s contention that Cintron intended to murder Idrovo. At

trial, Idrovo testified that Cintron had locked him in the apartment, asked

him to sit down at a table, drew a gun, and then informed Idrovo that he

was hired by Idrovo’s ex-wife and her boyfried to kill Idrovo.     See N.T.,

Trial, 6/21/11, at 73, 79. Idrovo testified that Cintron pulled the gun from

the front of his waistband. See id., at 75.

       Officer Stacey Harper testified that the table in Cintron’s apartment

was white. See id., at 155. However, at the preliminary hearing, Idrovo

testified that he saw Cintron pull the gun from his waistband through the

glass table. See N.T., Preliminary Hearing, 5/7/10, at 19.

       In its closing argument, the Commonwealth argued that Idrovo’s

testimony of the interaction in Cintron’s apartment constituted evidence of a

specific intent to kill. See N.T., Closings and Jury Charge, 6/23/11, at 37.

Thus, Idrovo’s credibility is tremendously important to the Commonwealth’s

assertion that Cintron intended to kill Idrovo.      While the discrepancy

____________________________________________


2
  A certified copy of the preliminary hearing transcript was subsequently
made a part of the certified record on appeal due to the Commonwealth’s
efforts.



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between Idrovo’s testimony at the preliminary hearing and Officer Harper’s

testimony at trial might be considered minimal, we note that the defense

had mounted a consistent attack on Idrovo’s credibility at trial. Given these

circumstances, we refuse to address the issue of prejudice as a matter of

first impression on appeal.   Cintron is entitled to have counsel review the

issue and either advocate it or discuss its lack of merit in an appropriate “no-

merit” letter.   Furthermore, Cintron is entitled to have the PCRA court

conduct an independent review of this issue, with the benefit of the

appropriate transcripts, after counsel has reviewed and addressed the issue.

Assuming a subsequent appeal, our well-established duty would be to review

the PCRA court’s decision for an error of law or an abuse of discretion.

      Given the issues with Attorney Brendza’s failure to file a copy of the

preliminary hearing transcript after citing it in his “no-merit” letter, we

remand for appointment of new counsel to represent Cintron.         We do not

limit the scope of counsel’s representation; new counsel is to review the

record and Cintron’s allegations and determine the best course forward.

New counsel is free to adopt Attorney Brendza’s reasoning on the issues he

did address, if, after an independent review, counsel concludes that it is

appropriate to do so. In any event, new counsel must address, in the first

instance, Cintron’s claim that trial counsel was ineffective in failing to

impeach Idrovo’s credibility through the use of the preliminary hearing

transcripts.


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      Order vacated. Case remanded for appointment of new counsel and

further   proceedings   consistent   with     this   memorandum.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2015




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