J-S32011-17

                                  2017 PA Super 248


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JALIL WILLIAMS                             :
                                               :
                      Appellant                :       No. 666 EDA 2016

                Appeal from the PCRA Order February 19, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009983-2009,
                            CP-51-CR-0403921-2003



BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*

OPINION BY GANTMAN, P.J.:                                 FILED JULY 27, 2017

        Appellant, Jalil Williams, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his first

petition brought pursuant to the Post Conviction Relief Act (“PCRA”). 1       We

vacate and remand for further proceedings.

        In its July 18, 2013 opinion preceding Appellant’s direct appeal, the

trial court accurately set forth the relevant facts and procedural history of

this case as follows:2

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
2
  In its July 22, 2016 opinion preceding the current appeal, the PCRA court
incorporated by reference the facts set forth in its July 18, 2013 opinion.


___________________________

*Former Justice specially assigned to the Superior Court
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       [Appellant] was arrested [on] September 18, 2002, after
       police observed [Appellant] selling 2 packets of crack
       cocaine to a buyer who was later stopped; also,
       [Appellant] was found with 2 packets of crack cocaine and
       $89.00 United States currency (USC). On October 24,
       2003, [Appellant] was [convicted after a bench trial of
       possession of a controlled substance with the intent to
       deliver and simple possession and] sentenced to 9 to 19
       months’ incarceration followed by 2 years reporting
       probation (CP-51-CR-0403921-2003).

       On May 18, 2007, a VOP hearing was held,
       probation/parole was revoked, and [Appellant] was
       sentenced to 6 to 23 months’ incarceration followed by 3
       years’ probation. On September 3, 2007, [Appellant] was
       granted parole.

       On August 15, 2008, [Appellant] was arrested for
       aggravated assault and related charges (MC-51-CR-
       0041231-2008). On September 2, 2008, [Appellant] was
       arrested for simple assault, burglary, violating the Uniform
       Firearms Act (VUFA), and related charges (MC-51-CR-
       0044379-2008). Both matters were dismissed on March 3,
       2009. On September 2, 2008, [Appellant] was placed on
       wanted cards for absconding.

       On July 27, 2010, [Appellant] entered into a non-
       negotiated guilty plea to possessing cocaine with the intent
       to deliver (arrest date 7/25/09) and was sentenced to [8
       to] 23 months’ house arrest and a concurrent term of 72
       months’ reporting probation (CP-51-CR-0009983-2009);
       his probation was revoked on CP-51-CR-0403921-2003,
       and he was given a concurrent term of 6 years’ probation
       for his violation.

       On August 12, 2010, [Appellant] was placed on wanted
       cards. At a VOP hearing on September 1, 2010, probation
       was revoked and [Appellant] was placed on 6 years’
       probation on CP-51-CR-0403921-2003, to run consecutive
       to CP-51-CR-0009983-2009, in which 8 to 23 months’
       incarceration to be followed by 72 months’ reporting
       probation (6 years’ reporting and one year non-reporting)
       was imposed.


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J-S32011-17


          On March 25, 2011, [Appellant] was released from custody
          after parole was granted and, while on parole, he
          submitted to urine screenings that were positive for
          marijuana, opiates, cocaine, and benzodiazepines.     He
          failed to report to a drug screening, and his history of
          reporting was sporadic.

          [Appellant] was arrested on May 1, 2012, and charged
          with VUFA and related offenses (CP-51-CR-0007854-
          2012).

          After a VOP hearing on February 5, 2013, probation was
          revoked…, and sentencing was deferred pending the
          completion of a Presentence Report. On April 17, 2013,
          this court sentenced [Appellant] to 108 to 216 months’
          incarceration on CP-51-CR-0009983-2009, and one year
          consecutive reporting probation on CP-51-CR-0403921-
          2003. …

(Trial Court Opinion, filed July 18, 2013, at 1-4) (internal citations and

footnotes omitted).       On August 14, 2014, this Court affirmed Appellant’s

judgment of sentence at dockets CP-51-CR-0403921-2003 and CP-51-CR-

0009983-2009.          See    Commonwealth       v.   Williams,   106   A.3d   159

(Pa.Super. 2014). Appellant did not seek further direct review.

       On November 19, 2014, Appellant timely filed his first PCRA petition

pro se.     Appellant retained PCRA counsel, who filed an amended PCRA

petition on March 13, 2015.3 The Commonwealth filed a motion to dismiss

on July 14, 2015. On October 2, 2015, Appellant filed a second amended

PCRA petition. The Commonwealth responded on December 21, 2015. On
____________________________________________


3
 Appellant filed his pro se PCRA petition at docket CP-51-CR-0009983-2009
only. Appellant filed his amended PCRA petition and all subsequent filings at
dockets CP-51-CR-0403921-2003 and CP-51-CR-0009983-2009.



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J-S32011-17


January 15, 2016, the court issued notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907.

       On January 25, 2016, Appellant filed a pro se motion for appointment

of counsel.    Appellant alleged that he contacted PCRA counsel on January

20, 2016, after receipt of the court’s Rule 907 notice.          According to

Appellant, PCRA counsel said he would no longer represent Appellant

because Appellant could not afford to pay him.         Appellant noted PCRA

counsel did not file a formal motion to withdraw with the court. Appellant

claimed PCRA counsel abandoned him, and Appellant lacked resources to

hire another attorney. Appellant also alleged PCRA counsel was ineffective

because he failed to raise issues Appellant wanted to pursue.        Appellant

asked the court to appoint new PCRA counsel. The next day, Appellant filed

a pro se response to the court’s Rule 907 notice.4

       On February 19, 2016, without responding to Appellant’s pro se

motion for appointment of counsel, the PCRA court dismissed Appellant’s

petition at docket CP-51-CR-0009983-2009. The court dismissed Appellant’s



____________________________________________


4
   Nothing in the record suggests the PCRA court forwarded Appellant’s pro se
filings to PCRA counsel, who was still counsel of record. See Pa.R.Crim.P.
576(A)(4) (stating in any case in which defendant is represented by
attorney, if defendant submits written motion, notice or document that has
not been signed by defendant’s attorney, clerk of courts shall accept it for
filing and forward copy of time-stamped document to defendant’s attorney
and attorney for Commonwealth within 10 days of receipt).



                                           -4-
J-S32011-17


petition at docket CP-51-CR-0403921-2003 on February 22, 2016.5              On

February 25, 2016, Appellant filed a pro se notice of appeal at both dockets

and a voluntary concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).          In his Rule 1925(b) statement, Appellant

alleged, inter alia, the PCRA court erred by dismissing his first PCRA petition

without appointing new counsel where Appellant was indigent and privately-

retained PCRA counsel had abandoned him. That day, Appellant also filed a

pro se motion for appointment of counsel.6            The court appointed PCRA

appellate counsel on March 16, 2016. On April 26, 2016, the court ordered

Appellant to file a Rule 1925(b) statement. Appellant filed a counseled Rule

1925(b) statement on May 6, 2016.

       Appellant raises six issues for our review:

          WAS THE SENTENCE IMPOSED IN THIS CASE OF 9 TO 18
          YEARS   AT    THE  VOP   HEARING   ILLEGAL   AND
          UNCONSTITUTIONAL      BECAUSE    IT     VIOLATED
          [APPELLANT’S] RIGHT NOT TO BE PLACED IN DOUBLE
____________________________________________


5
  The dismissal order reflects the court’s belief that PCRA counsel was still
representing Appellant. The order states: “AND NOW, this 22 nd day of
February, 2016, this [c]ourt having determined that the issues raised by
[Appellant] in his Post Conviction Relief Act Petition are without merit or
have been previously litigated, this matter is dismissed.          907 Notice
previously sent. In Forma Pauperis status to continue. Upon [Appellant’s]
request, present PCRA counsel to file an appeal to the dismissal of
[Appellant’s] petition in the Superior Court of Pennsylvania within thirty (30)
days from the date of the Formal Dismissal of PCRA Petition.” (Order, filed
2/22/16, at 1).
6
   This motion for appointment of counsel is identical to the motion Appellant
filed on January 25, 2016.



                                           -5-
J-S32011-17


          JEOPARDY FOR THE SAME OFFENSE?

          WAS APPELLATE DEFENSE COUNSEL ON DIRECT APPEAL
          FROM THE VOP SENTENCE INEFFECTIVE FOR NOT
          INFORMING THE APPELLATE COURT THAT APPELLANT HAD
          BEEN ACQUITTED AT TRIAL OF THE VUFA OFFENSE
          WHICH WAS THE SUBJECT OF THE [DAISEY] KATES[7]
          VOP HEARING WHEREIN THE PRESIDING JUDGE FOUND
          THAT [APPELLANT] HAD POSSESSED THE FIREARM?

          IS APPELLANT ENTITLED TO A NEW SENTENCING
          HEARING BECAUSE THE TRIAL COURT DID NOT ORDER
          THAT APPELLANT RECEIVE CREDIT FOR TIME SERVED ON
          HIS SENTENCE FROM THE DATE OF HIS ARREST TO THE
          DATE OF HIS SENTENCING AND DID NOT ORDER CREDIT
          FOR TIME SERVED OF 46 MONTHS CREDIT FOR PREVIOUS
          INCARCERATIONS HE HAD RECEIVED IN THE CASE FOR
          HIS PRIOR PROBATION VIOLATIONS?

          DID THE TRIAL COURT ERR IN NOT ORDERING A NEW VOP
          SENTENCE    HEARING    BECAUSE    APPELLANT  WAS
          ACQUITTED OF THE VUFA OFFENSE AT A SUBSEQUENT
          TRIAL INDICATING THAT APPELLANT WAS INNOCENT OF
          THE VUFA VIOLATION OF WHICH HE WAS FOUND TO
          HAVE COMMITTED BY THE TRIAL COURT AT THE
          [DAISEY] KATES VOP HEARING?

          WAS APPELLANT’S VOP COUNSEL INEFFECTIVE AT THE
          VOP HEARING BECAUSE COUNSEL FAILED TO OBJECT TO
          IMPROPER   PREJUDICIAL   HEARSAY  EVIDENCE   THE
          ADMISSION OF WHICH ALSO DENIED APPELLANT HIS
          STATE AND FEDERAL RIGHT TO CONFRONT THE EVIDENCE
          AGAINST HIM?

          WAS APPELLANT’S PCRA COUNSEL INEFFECTIVE FOR
          FAILING   TO  ASSERT   VOP   DEFENSE   COUNSEL’S
          INEFFECTIVENESS FOR FAILURE TO REQUEST A
          CONTINUANCE OF THE VOP HEARING UNTIL AFTER THE
          CONCLUSION OF [APPELLANT’S] TRIAL FOR VUFA
          OFFENSE AND FAILURE OF VOP COUNSEL TO INTRODUCE
____________________________________________


7
    Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973).



                                           -6-
J-S32011-17


         EVIDENCE OF [APPELLANT’S] INNOCENCE OF THE
         FIREARM OFFENSE AT THE VOP HEARING IN THE FORM OF
         EXPERT    TESTIMONY     WHICH    SHOWED      THAT
         [APPELLANT’S] FINGERPRINTS WERE NOT ON THE
         FIREARM?

(Appellant’s Brief at 2).

      As a preliminary matter, Pennsylvania Rule of Criminal Procedure 904

provides, in pertinent part:

         Rule 904. Entry of Appearance and Appointment of
         Counsel; In Forma Pauperis

                                 *    *    *

            (C) Except as provided in paragraph (H), when an
         unrepresented defendant satisfies the judge that the
         defendant is unable to afford or otherwise procure counsel,
         the judge shall appoint counsel to represent the defendant
         on the defendant’s first petition for post-conviction
         collateral relief.

                                 *    *    *

            (F)    When counsel is appointed,

                                 *    *    *

            (2) the appointment of counsel shall be effective
         throughout the post-conviction collateral proceedings,
         including any appeal from disposition of the petition for
         post-conviction collateral relief.

Pa.R.Crim.P. 904(C), (F)(2). This Court has stated:

         Pursuant to the rules of criminal procedure and interpretive
         case law, a criminal defendant has a right to
         representation of counsel for purposes of litigating a first
         PCRA petition through the entire appellate process. …

                                 *    *    *


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J-S32011-17


        While the right to legal representation in the PCRA context
        is not constitutionally derived, the importance of that right
        cannot be diminished merely due to its rule-based
        derivation. In the post-conviction setting, the defendant
        normally is seeking redress for trial counsel’s errors and
        omissions.     Given the current time constraints of 42
        Pa.C.S. § 9545, a defendant’s first PCRA petition, where
        the rule-based right to counsel unconditionally attaches,
        may well be the defendant’s sole opportunity to seek
        redress for such errors and omissions. Without the input
        of an attorney, important rights and defenses may be
        forever lost.

Commonwealth v. Robinson, 970 A.2d 455, 457-59 (Pa.Super. 2009) (en

banc). See also Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161

(1999) (explaining indigent petitioner has right to appointment of counsel to

assist in prosecuting first PCRA petition; where that right has been

effectively denied by action of court or counsel, petitioner is entitled to

remand to PCRA court for appointment of counsel to prosecute PCRA

petition; remand serves to give petitioner benefit of competent counsel at

each stage of post-conviction review).

     Instantly, on November 19, 2014, Appellant timely filed his first PCRA

petition pro se.   Appellant retained PCRA counsel, who filed an amended

PCRA petition on March 13, 2015, and a second amended PCRA petition on

October 2, 2015.    The court issued Rule 907 notice on January 15, 2016.

On January 25, 2016, Appellant filed a pro se motion for appointment of

counsel. Appellant alleged that he contacted PCRA counsel on January 20,

2016, after receipt of the court’s Rule 907 notice. According to Appellant,

PCRA counsel said he would no longer represent Appellant because Appellant

                                    -8-
J-S32011-17


could not afford to pay him.        Appellant noted PCRA counsel did not file a

formal motion to withdraw with the court. Appellant claimed PCRA counsel

abandoned him, and Appellant lacked resources to hire another attorney.

Appellant also alleged PCRA counsel was ineffective because he failed to

raise issues Appellant wanted to pursue.           Appellant asked the court to

appoint new PCRA counsel.          Appellant also filed a pro se response to the

court’s Rule 907 notice that day.

      Notwithstanding Appellant’s allegations of indigency and abandonment

by PCRA counsel, the court took no action on Appellant’s request for

appointment of counsel before denying PCRA relief.           The record indicates

Appellant is indigent.     Thus, Appellant was entitled to appointment of

counsel throughout all stages of litigating his first PCRA petition.              See

Pa.R.Crim.P.   904(C),     (F)(2);     Kenney,     supra;     Robinson,     supra.

Additionally, the PCRA court opinion states the court held a hearing on

Appellant’s PCRA claims; but no indication of a PCRA hearing appears in the

certified record, and Appellant disputes that a hearing ever took place.

Further, the PCRA court declined to address many of the issues presented in

Appellant’s pro se voluntary Rule 1925(b) statement and counseled court-

ordered Rule 1925(b) statement.

      Given    the   significant    rights   at   issue,   Appellant’s   claims    of

abandonment and detailed and layered issues on appeal, and the incomplete

record before us, the best resolution of this case is to vacate and remand for


                                        -9-
J-S32011-17


PCRA appellate counsel to file a new amended PCRA petition on Appellant’s

behalf and for further proceedings. See Kenney, supra (holding reviewing

court is error-correcting court and cannot evaluate claim that PCRA court did

not   consider;   Superior   Court   has   no   original   jurisdiction   in   PCRA

proceedings; if record is insufficient to adjudicate allegations, case should be

remanded for further inquiry).       Accordingly, we vacate and remand for

further proceedings.

      Order vacated; case remanded with instructions.              Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2017




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