J-S14041-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
LEROY GRIFFIN,                            :
                                          :
                 Appellant                :     1359 MDA 2016

                Appeal from the PCRA Order August 2, 2016
             in the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0000312-2002

BEFORE:     GANTMAN, P.J., SHOGAN, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 17, 2017

      Leroy Griffin (Appellant) appeals pro se1 from the August 2, 2016

order dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the order denying the pro se

PCRA petition.   We remand for the PCRA court (1) to appoint counsel to

assist Appellant, including, if necessary, filing an amended PCRA petition on




1
  Appellant filed pro se an application for relief to this Court on October 31,
2016, wherein he requested, inter alia, appointment of counsel to represent
him on appeal. On November 21, 2016, this Court denied Appellant’s
application based upon the PCRA court’s indication in its Pa.R.A.P. 1925(a)
opinion that Appellant was appealing his third PCRA petition. Appellant filed
an application for reconsideration on December 6, 2016. On December 31,
2016, this Court granted reconsideration, vacated the November 21, 2016
order denying counsel, and deferred the application to the merits panel.
Due to our disposition today, we deny Appellant’s application as moot.



*Retired Senior Judge assigned to the Superior Court.
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Appellant’s behalf or a Turner/Finley2 petition to withdraw and (2) to rule

on the merits of Appellant’s petition in accordance with the procedures in

Pa.R.Crim.P. 907 and 908.

      “This case has a convoluted procedural history.” Commonwealth v.

Griffin, 60 A.3d 233 (Pa. Super. 2012) (unpublished memorandum at 2)

(Griffin IV). We refer to our prior memoranda for a complete factual and

procedural history. See Griffin IV; Commonwealth v. Griffin, 4 A.3d 672

(Pa. Super. 2010) (unpublished memorandum); Commonwealth v. Griffin,

935   A.2d    11      (Pa.    Super.   2007)    (unpublished   memorandum);

Commonwealth v. Griffin, 873 A.2d 767 (Pa. Super. 2005) (unpublished

memorandum).

      For the purposes of this memorandum, we note only the following.

Appellant was sentenced on October 29, 2002 to an aggregate term of 11 to

28 years’ imprisonment.       Appellant subsequently filed a series of appeals

and PCRA petitions.          “On July 23, 2009, the PCRA court reinstated

Appellant’s right to a direct appeal. Appellant appealed and this Court

affirmed the judgment of sentence on June 2, 2010.”            Griffin IV at 3

(citation omitted).   On February 18, 2011, Appellant filed pro se a PCRA

petition, which the PCRA court denied. On appeal, this Court observed that

“a PCRA petition brought after an appeal nunc pro tunc is considered [to be

an] appellant’s first PCRA petition.”          Id. (citing Commonwealth v.

2
  Commonwealth v. Turner, 544 A.2d 927 (Pa.                        1988)   and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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Figueroa, 29 A.3d 1177, 1181 (Pa. Super. 2011)).           The Court further

observed that “where an indigent, first-time PCRA petitioner was denied his

right to counsel—or failed to properly waive that right—this Court is required

to raise this error sua sponte and remand for the PCRA court to correct that

mistake.” Id. (citing Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.

Super. 2011)). Because the PCRA court denied Appellant’s petition without

appointing counsel for him, or ensuring that he knowingly and voluntarily

waived his right to counsel, this Court vacated the order denying Appellant’s

pro se PCRA petition and remanded

       for the court to appoint counsel to file an amended PCRA petition
       on behalf of Appellant, or a petition to withdraw from
       representation and brief pursuant to Turner/Finley, or conduct
       a proper colloquy if Appellant chooses to waive his right to
       counsel. If counsel files a Turner/Finley petition and the court
       grants it and intends to dismiss the pro se PCRA petition, the
       court shall issue a Pa.R.Crim.P. 907 notice and notify Appellant
       of his right to appeal.

Id. at 4 (internal footnote omitted).

       On remand, the PCRA court appointed counsel, but in response to

Appellant’s motions requesting to proceed pro se, the PCRA court conducted

a Grazier3 hearing on September 20, 2012. During the hearing, Appellant

testified he wished to proceed pro se and requested transcripts of certain

prior proceedings.    The PCRA court stated that it would not conduct a

hearing on Appellant’s February 18, 2011 PCRA petition until Appellant

received the transcripts, due to the PCRA court’s belief that without the

3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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transcripts, Appellant would not be adequately prepared to represent

himself. N.T., 9/20/2012, at 21. The PCRA court directed that transcripts of

the September 20, 2012 and March 30, 2009 proceedings be sent directly to

Appellant and instructed Appellant to file a motion for a PCRA hearing within

30 days of receipt of the transcripts. Order, 9/20/2012. The PCRA court also

relieved Attorney Henry Fenton from his representation of Appellant and

excused him from appearing at the PCRA hearing unless Appellant indicated

in his motion that he wished for Attorney Fenton to serve as standby

counsel. Id.

      The record indicates that the court reporter produced the transcript of

the September 20, 2012 hearing, but, despite the court’s order, served it

upon Attorney Fenton instead of Appellant. Notice of Lodging of Transcript

of Record, 10/10/2012. There is no indication from the record that the court

reporter ever produced or served the transcript of the March 30, 2009

proceedings upon Appellant.

      The case largely lay dormant until May 2, 2016, when Appellant filed

pro se a motion requesting, inter alia, a hearing “as order [sic] on

September 20, 2012.” PCRA Petition, 5/2/2016, at 1. Although the motion

is difficult to decipher, Appellant also appears to have asserted that his trial

counsel was ineffective for waiving the recording of voir dire of the jury and

for the manner in which the trial counsel conducted the voir dire. Id. at 1-2.

Appellant also alleged that the victim recanted her testimony at some


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undetermined point. Id. Finally, Appellant requested assistance of counsel.

Id. at 4.    The PCRA court contended that Appellant’s motion was a third

PCRA petition and issued a Rule 907 notice of intent to dismiss the petition

without a hearing due to the petition’s alleged untimeliness and Appellant’s

failure to plead an exception to the time bar. Order, 5/5/2016. The PCRA

court did not address Appellant’s request for counsel.    See id.   Appellant

responded by arguing that the May 2, 2016 petition was not his third

because the PCRA court had never ruled on his February 18, 2011 PCRA

petition.4   Response to Rule 907 Notice, 5/19/2016.       He reiterated his

request for counsel. Id. Nevertheless, the PCRA court dismissed Appellant’s

petition via final order dated August 1, 2016. Order, 8/1/2016.

      Appellant timely filed pro se a notice of appeal.     The PCRA court

ordered Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b).

See Order, 8/18/2016, at 1.    Appellant did so.5   See Concise Statement,

8/31/2016. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a).


4
 Appellant also submitted a supplement to his response, docketed on July
27, 2016.

5
 The PCRA court asserts Appellant did not file a concise statement pursuant
to Pa.R.A.P. 1925 as ordered in its August 18, 2016 order and urges us to
hold that Appellant waived all issues on appeal. See Order, 10/11/2016, at
1. However, a concise statement dated August 31, 2016, appears in the
record with a date stamp indicating it was docketed on October 11, 2016,
the same day as the PCRA court’s Pa.R.A.P. 1925(a) opinion. According to
the August 18, 2016 order, the due date for the concise statement was
September 8, 2016. Appellant certified in his certificate of service that he
served the concise statement on the PCRA court on August 31, 2016 via the
United States postal service.       The postage stamp on the envelope
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      First, we have to determine whether Appellant’s May 2, 2016 petition

is a new petition or an amendment relating back to Appellant’s timely-filed

February 18, 2011 petition, previously deemed to be his first. “Pennsylvania

law vests PCRA courts ‘with discretion to permit the amendment of a

pending,   timely-filed    post-conviction    petition....’”   Commonwealth     v.

Swartzfager,     59       A.3d   616,   620-21     (Pa.    Super.   2012)   (citing

Commonwealth v. Flanagan, 854 A.2d 489, 499 (Pa. 2004)). Subsequent

amendments do not need to raise the same issues as the initial filing. See

id. at 499-500. “Rather, the prevailing rule remains simply that amendment

is to be freely allowed to achieve substantial justice.” Id. at 500.

      In the absence of a final ruling on a timely-filed first PCRA petition, it

is proper to treat a subsequent petition for post-conviction relief as an

amendment to the first timely-filed petition.             See Commonwealth v.

Sepulveda, 144 A.3d 1270, 1280 (Pa. 2016) (approving the liberal

amendment policy of Pa.R.Crim.P. 905(A) so long as a PCRA petition is still

pending before the PCRA court at the time the request for amendment is

made); Commonwealth v. Williams, 828 A.2d 981 (Pa. 2003) (holding

accompanying the filing of the concise statement in the PCRA court indicates
a mailing date of October 6, 2016, almost a full month after its due date.
Under the “prisoner mailbox rule,” we will deem the statement as filed on
the date the appellant presents it to prison authorities for mailing.
Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011). This
date is not clear from the record. Although Pa.R.A.P. 1925(c) permits us to
remand to determine whether the 1925(b) statement was timely filed and/or
served, we decline to remand on this basis or find waiver because of our
holding that the PCRA court erred in failing to appoint counsel for Appellant.


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that because the PCRA court never ruled on the petitioner’s motion to

withdraw his first PCRA petition, a subsequent PCRA petition constituted an

amendment to a timely-filed first petition); Flanagan, 854 A.2d at 499

(holding that since the original PCRA petition filed in 1988 was never

withdrawn or dismissed, the PCRA court properly declined to treat a

subsequent petition and motion for a hearing filed eleven years later as a

“serial, post-conviction petition which would be independently subject to the

PCRA’s one-year time limitation”); Swartzfager, 59 A.3d at 620-21

(construing pro se PCRA petition filed in 2011 as an amendment to

petitioner’s “still open and timely-filed” 2001 PCRA petition).

      In the instant case, the record indicates the PCRA court never

conducted a hearing regarding Appellant’s February 18, 2011 PCRA petition

or entered an order disposing of the petition, as this Court directed in its

May 4, 2012 remand order.6 Therefore, we conclude that the February 18,

2011 petition is still pending and Appellant’s May 2, 2016 filing relates back

to his timely-filed February 18, 2011 petition.     See Williams, Flanagan,

and Swartzfager.

      Because the PCRA court should have treated Appellant’s petition as an

amendment to his timely-filed February 18, 2011 petition, which was

6
  We also note that the PCRA court contemplated that two transcripts would
be served directly to Appellant prior to his moving for a hearing. Order,
9/20/2012. The record indicates that the March 30, 2009 hearing was never
transcribed and neither of the transcripts mentioned in the September 20,
2012 order was served directly on Appellant.


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deemed to be an initial petition by virtue of the reinstatement of his appeal

rights nunc pro tunc, the PCRA court should have appointed counsel for

Appellant if he was financially eligible. See Figueroa, 29 A.3d at 1181.

      We are cognizant that the PCRA court had already conducted a

Grazier hearing on September 20, 2012 in relation to Appellant’s February

18, 2011 PCRA petition. However, after reviewing the transcript from that

hearing, we hold that the PCRA court’s colloquy of Appellant was deficient.

See Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011)

(“[W]here an indigent, first-time PCRA petitioner was denied his right to

counsel—or failed to properly waive that right—this Court is required to raise

this error sua sponte and remand for the PCRA court to correct that

mistake.”).7 This Court has stated the following regarding the components

of a proper colloquy.

      [I]f a PCRA defendant indicates a desire to represent himself, it
      is incumbent upon the PCRA court to elicit information from the
      defendant that he understands the items outlined in Pa.R.Crim.P.
      121(A)(2)(a), (d), (e), and (f). A court must explain to a
      defendant that he has the right to counsel, in accordance with
      (a), that he is bound by the rules as outlined in (d), and that he
      may lose rights, as indicated in (f). Subsection (e) must be
      appropriately tailored so that a defendant is informed that “there
      are possible defenses to these charges that counsel might be
      aware of, and if these defenses are not raised [in a PCRA
      petition], they may be lost permanently.

Commonwealth v. Robinson, 970 A.2d 455, 459-60 (Pa. Super. 2009).

7
  We note that “this Court ‘is not required to consider, nor shall we, whether
[a petitioner] … is indigent.’” Stossel, 17 A.3d at 1288 n.3 (citation
omitted).


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      During the colloquy, Appellant’s PCRA counsel and the PCRA court

focused upon Appellant’s prior representation of himself and the number of

attorneys he has had in this matter.8      N.T., 9/20/2016, at 7-9, 13-15.

However, the questioning by Appellant’s counsel and the PCRA court failed

to ascertain specifically whether Appellant understood that counsel would be

familiar with the applicable rules and if he forewent counsel, that he would

still be bound by such rules; that counsel may be aware of possible defenses

and if Appellant did not raise those defenses in a PCRA petition he may lose

them permanently; that Appellant has certain rights, and if he did not assert

those rights in a timely fashion, he may lose them permanently; and that

Appellant must timely object to errors and if he does not do so, he cannot

raise the errors later. Thus, even if Appellant did not request new counsel in

his May 2, 2016 filing, we would be bound to remand for appointment of

counsel or a waiver colloquy that satisfies Pa.R.Crim.P. 121.             See

Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998) (“The denial of

PCRA relief cannot stand unless the petitioner was afforded the assistance of

counsel.”).

8
  For example, the PCRA court told Appellant, “Now, [Appellant], look, you
have been through a number of attorneys.” N.T., 9/20/2012, at 9. Later in
the hearing, he queried the prosecutor and PCRA counsel regarding the
names of Appellant’s prior attorneys and stated “[s]o now we are up to
about five lawyers – cause I want this record – I will be glad to send this to
the Superior Court, I want them to see all the work we have done.” N.T.,
9/20/2012, at 13-14. The number of Appellant’s prior attorneys is neither
relevant to his right to represent himself nor the inquiry required by Rule
121 to permit him to do so.


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        In light of the foregoing, we vacate the PCRA court’s August 2, 2016

order    denying   Appellant’s   pro   se    petition   and   remand   for   further

proceedings. The PCRA court shall first appoint counsel to assist Appellant

(which may include filing another amended petition or a petition to withdraw

pursuant to Turner/Finley as necessary), and then proceed to rule on the

merits of Appellant’s claims pursuant to Pa.R.Crim.P. 907 and 908.

        Order denying PCRA relief vacated.       Case remanded for proceedings

consistent with this memorandum.            Appellant’s application for counsel to

represent him on appeal denied as moot. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/17/2017




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