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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
ROBERT SPIVEY,                            :           No. 1330 EDA 2016
                                          :
                         Appellant        :


                   Appeal from the PCRA Order, April 8, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0000470-2012


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 13, 2017

        Robert Spivey appeals pro se from the April 8, 2016 order entered in

the Court of Common Pleas of Philadelphia County which dismissed, without

a hearing, his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We remand for further proceedings.

        The PCRA court set forth the following procedural history:

                   On October 24, 2011, [appellant] was arrested
             and charged with Murder and related offenses. On
             March 4, 2013, [appellant] elected to be tried by a
             jury. On March 8, 2013, the jury returned guilty
             verdicts to First-Degree Murder and Carrying a
             Firearm in Public in Philadelphia.[1][Footnote 1]
             Sentencing was deferred until April 1, 2013, at which
             time this Court imposed a mandatory sentence of life
             imprisonment without parole for First-Degree
             Murder, with a concurrent sentence of one to two
             years for Carrying a Firearm in Public in Philadelphia.

1   18 Pa.C.S.A. §§ 2502(a) and 6108, respectively.
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                 [Footnote 1]   All other charges were
                 nolle prossed.

                 On May 1, 2013, [appellant] filed a timely
           Notice of Appeal. On May 29, 2013, [appellant] filed
           a timely [Pa.R.A.P.] 1925(b) statement. [. . .] On
           June 6, 2013, this Court filed its opinion finding
           [appellant’s] claims meritless.   On February 21,
           2014, [the] Superior Court affirmed the judgment of
           sentence.

                 On September 9, 2014, [appellant] timely filed
           a [PCRA] petition and motion to proceed pro se. On
           October 23, 2015, this Court held a Grazier hearing
           in which [appellant] requested counsel to be
           appointed.   On the same day, David Rudenstein,
           Esquire was appointed as PCRA counsel and entered
           his appearance.

                  On January 6, 2016, appointed PCRA counsel
           filed an amended petition. On January 22, 2016,
           private counsel, Mary Maran, Esquire entered her
           appearance.     Maran did not file a supplemental
           petition. On March 4, 2016, the Commonwealth filed
           a response to appointed PCRA counsel’s amended
           petition.   On March 8, 2016, this Court found
           [appellant’s] claims meritless and filed a Notice of
           Intent to Dismiss under Pa.R.Crim.P. 907.         On
           March 28, 2016, in response to this Court’s 907
           Notice, Maran filed a “Motion to Reconsider Denial of
           PCRA” on [appellant’s] behalf.

PCRA court opinion, 4/8/16 at 1-2 (footnote 2 omitted).

     The record reflects that on April 8, 2016, the PCRA court denied

appellant’s motion to reconsider denial of PCRA and entered an order

dismissing appellant’s PCRA petition.   On April 27, 2016, Attorney Maran

filed a motion to withdraw representation and for appointment of counsel

averring that she had been retained to represent appellant in connection


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with his PCRA petition only and that she had fulfilled that obligation. (Motion

to withdraw representation and for appointment of counsel, 4/27/16; docket

# 25.)   In that motion, Attorney Maran also averred that “[p]ursuant to

[appellant’s] request to exercise his right of appeal, counsel has filed a

Notice of Appeal to the Superior Court and served all parties.”          (Id.)

Appellant’s notice of appeal was docketed on April 27, 2016.        (Notice of

appeal, 4/27/16; docket # 24.)

      The record further demonstrates that on April 29, 2016, the PCRA

court granted Attorney Maran’s motion to withdraw as counsel. The lower

court docket reveals that on May 3, 2016, Attorney Todd Michael Mosser

entered his appearance on behalf of appellant, and an “appointment notice”

was filed.   The record further reflects that the PCRA court did not order

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and the PCRA court did not file a

Rule 1925(a) opinion.

      On August 24, 2016, appellant filed an application to proceed pro se

on appeal with this court.   On September 15, 2016, this court entered a

per curiam order that directed the PCRA court “to conduct an on-the-

record determination as to whether the [a]ppellant’s waiver of counsel is

knowing, intelligent and voluntary, pursuant to Commonwealth v. Grazier,

713 A.2d 81 (Pa. 1998), and to provide written notice of its determination

to the Prothonotary of this Court within sixty (60) days.” (Order of court,



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9/15/16 (emphasis added).)       On September 30, 2016, the PCRA court

entered the following order, which it filed in this court on March 3, 2017:

                  AND NOW, this 30th day of September, 2016,
            after consideration of the Motion Proceed [sic]
            Pro Se by [appellant,] it is ORDERED that the
            Motion Proceed [sic] Pro Se is GRANTED.

            PCRA Hearing. Defense Motion to Proceed Pro Se is
            GRANTED. Previous Defense Counsel Todd Mosser is
            Ordered to Send [appellant] Any Documents in
            Relation to this Case. [. . .] Atty: Todd Mosser is
            Removed, [appellant] Pro Se[.]

Order of court, 9/30/16.

      The PCRA court, however, did not file the Grazier hearing transcript

for our review.    The information available to this court reveals that no

transcript was filed because the PCRA court did not hold the September 30,

2016 Grazier hearing on the record in accordance with that part of this

court’s September 15, 2016 per curiam order that directed it “to conduct

an on-the-record determination as to whether the [a]ppellant’s waiver of

counsel is knowing, intelligent and voluntary, pursuant to [Grazier].”

(Order of court, 9/15/16 (emphasis added).)      It is well settled that in the

context of the PCRA, where the right to counsel is statutorily provided, a

petitioner choosing to waive that right can only do so after an on-the-record

colloquy is held to determine whether petitioner’s waiver is knowing,

intelligent, and voluntary. Grazier, 713 A.2d at 82.

      Therefore, we must once again remand to the PCRA court and direct it

to conduct the requisite on-the-record colloquy to determine whether


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appellant’s waiver of counsel is knowing, intelligent, and voluntary pursuant

to Grazier, 713 A.2d 81; file the Grazier hearing transcript with this court;

and provide written notice of its determination of whether appellant’s waiver

of counsel is knowing, intelligent, and voluntary within 45 days of the date of

the filing of this memorandum.

      Remanded with instructions. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/13/2017




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