J-S24009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
             v.                           :
                                          :
LAHME PERKINS,                            :
                                          :
                   Appellant              :            No. 1038 MDA 2015

                    Appeal from the PCRA Order May 6, 2015
               in the Court of Common Pleas of Dauphin County,
              Criminal Division, No(s): CP-22-CR-0001266-2008;
                            CP-22-CR-0001394-2008

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED OCTOBER 18, 2016

        Lahme Perkins (“Perkins”), pro se, appeals from the Order denying his

Petition for Relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We vacate the Order of the PCRA court, and remand for the appointment of

counsel and further proceedings.

        On December 18, 2008, Perkins was convicted of first-degree murder,

criminal conspiracy, carrying a firearm without a license, and providing false

identification to law enforcement.2 On that same date, for his conviction of

first-degree murder, the trial court sentenced Perkins to life in prison. For

his conviction of criminal conspiracy, the trial court sentenced Perkins to a

concurrent prison term of 10-20 years.        For his conviction of carrying a

firearm without a license, the trial court imposed a concurrent prison term of

1
    42 Pa.C.S.A. §§ 9541-9546.
2
    18 Pa.C.S.A. §§ 2502(a), 903, 6106, 4919.
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two to four years. The trial court imposed no further penalty on Perkins’s

remaining conviction of providing false identification to law enforcement.

      On direct appeal,3 this Court affirmed Perkins’s judgment of sentence,

after which the Pennsylvania Supreme Court denied allowance of appeal.

See Commonwealth v. Perkins, 60 A.3d 849 (Pa. Super. 2012)

(unpublished memorandum), appeal denied, 63 A.3d 146 (Pa. 2013). The

United States Supreme Court denied Perkins’s Petition for certiorari on

October 7, 2013. See Perkins v. Pennsylvania, ___ U.S. ___, 134 S. Ct.

139, 187 L. Ed. 2d 98 (2013).

      Perkins, pro se, filed the instant timely PCRA Petition on January 27,

2014.4   Perkins’s pro se Petition claimed that his trial counsel rendered

ineffective assistance, by failing to (1) conduct a thorough, pretrial

investigation, which would require counsel to challenge the “match” of

Perkins’s DNA to DNA obtained from the grip of the .32 caliber handgun used

in the shooting; (2) retain, or even consult with, a DNA expert to interpret

and refute the findings of the Commonwealth’s DNA expert; (3) present

character witnesses; and (4) object to the introduction of inflammatory


3
  On October 11, 2011, Perkins filed a pro se PCRA Petition requesting that
his direct appeal rights be reinstated, nunc pro tunc. After the appointment
of counsel, the PCRA court granted Perkins’s Petition, reinstating his direct
appeal rights, nunc pro tunc.
4
  See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013)
(recognizing that “when a PCRA petitioner’s direct appeal rights are
reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA
petition will be considered a first PCRA petition for timeliness purposes”).


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photographs. Pro Se PCRA Petition at 9. The PCRA court appointed counsel,

Jennifer E. Tobias, Esquire (“Attorney Tobias”), to represent Perkins.

Attorney Tobias filed a Supplemental PCRA Petition asserting the claims

raised by Perkins in his first, pro se Petition.   The Commonwealth filed a

Response to the Supplemental PCRA Petition, after which the PCRA court

ordered Attorney Tobias to file an Amended PCRA Petition.          PCRA Court

Order, 7/8/14. Attorney Tobias complied, filing an Amended PCRA Petition

and a Memorandum of Law.            The PCRA court subsequently held an

evidentiary hearing on the issues raised by Perkins.

      On March 23, 2015, the PCRA court filed a memorandum Opinion and

Order, and, notified Perkins of its intent to dismiss the PCRA Petition. On

that same date, Perkins filed a pro se Motion to compel service of the PCRA

court’s Notice of intent to dismiss, alleging that Attorney Tobias had failed to

forward the Notice to him.    Perkins also alleged that Attorney Tobias had

rendered ineffective assistance at the PCRA hearing.5      On April 23, 2015,

Perkins filed a Motion for an extension of time within which to respond to the

PCRA court’s Notice of intent to dismiss, again alleging the ineffective

assistance of Attorney Tobias.




5
  Perkins reserved his claim of PCRA counsel’s ineffectiveness by raising
them in his pro se response to the PCRA court’s Notice of intent to dismiss.
See Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009) (deeming
waived a claim of PCRA counsel’s ineffectiveness where the petitioner failed
to raise the claim before the PCRA court).


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      On May 6, 2015, the PCRA court entered an Order denying Perkins’s

PCRA Petition.    The PCRA court additionally denied Perkins’s Motion to

compel service, and his Motion for an extension of time.          Thereafter,

Attorney Tobias filed a Petition to withdraw as counsel, based upon Perkins’s

claims of ineffective assistance of PCRA counsel.

      On June 1, 2015, Perkins, pro se, filed an Application to proceed in

forma pauperis, a Motion for reconsideration of the denial of his PCRA

Petition, and a Notice of Appeal. In his Motion for Reconsideration, Perkins

claimed that Attorney Tobias had rendered ineffective assistance by failing to

retain and present an expert in support of his DNA-related claims. Motion

for Reconsideration, 6/1/15, at 2-3.      Several days later, the PCRA court

granted Attorney Tobias’s Petition to withdraw, but did not appoint new

counsel to represent Perkins. PCRA Court Order, 6/4/15. On June 15, 2015,

the PCRA court ordered Perkins to file a Pa.R.A.P. 1925(b) concise statement

of matters complained of on appeal. The PCRA court additionally entered an

Order granting Perkins’s Application to proceed in forma pauperis, and an

Order dismissing Perkins’s Motion for reconsideration.    Thereafter, Perkins

filed a pro se Concise Statement.

      Before addressing any of the claims raised by Perkins, we must

address the propriety of his pro se status. Our review discloses that, upon

the withdrawal of Attorney Tobias, the PCRA court failed to appoint counsel




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for Perkins.6 A PCRA petitioner has a rule-based right to counsel during the

litigation of the petitioner’s first PCRA petition. Pa.R.Crim.P. 904. Further

the right to counsel conferred on initial PCRA review means “an enforceable

right” to the effective assistance of counsel. Commonwealth v. Holmes,

79 A.3d 562, 583 (Pa. 2013).

      Presently, Perkins is not represented by counsel.7 In addition, Perkins

had claimed ineffective assistance of PCRA counsel, based upon her failure

to secure a DNA expert, which, Perkins claims, is necessary to establish the

arguable merit to his claim of ineffective assistance of trial counsel. Because

Perkins is entitled to representation during initial PCRA review, and effective

assistance of counsel during the litigation of his PCRA Petition, we deem it

necessary to vacate the Order denying Perkins’s PCRA Petition, and remand

for further proceedings.

      On remand, we direct the PCRA court to appoint counsel to represent

Perkins, or conduct a Grazier hearing should Perkins wish to proceed pro se.

Newly   appointed   counsel   for    Perkins,   within   30   days   from   his/her

appointment, is directed to file an amended PCRA petition to include

Perkins’s claim of ineffective assistance of PCRA counsel, and seek an

evidentiary hearing, if necessary.    Should Perkins proceed pro se, he may

6
  Our review further discloses that the PCRA court did not conduct a hearing
to determine if Perkins wished to proceed pro se, or satisfy the requirements
of Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
7
  Attorney Tobias’s withdrawal for a conflict of interest did not abrogate
Perkins’s right to counsel on appeal.


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file an amended PCRA petition raising his claim of ineffective assistance of

PCRA counsel, within 30 days of the Grazier hearing, and request an

evidentiary hearing on that issue, if necessary.

      Order vacated; case remanded for further proceedings consistent with

this Memorandum; Superior Court jurisdiction is relinquished.

      President Judge Gantman joins the memorandum.

      Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/18/2016




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