Com. v. Betts, T.

J-S28010-20

                               

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TASAI MARQUISE BETTS                    :
                                         :
                   Appellant             :   No. 1159 MDA 2019

            Appeal from the PCRA Order Entered June 17, 2019
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0003339-2013

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TASAI BETTS                             :
                                         :
                   Appellant             :   No. 1160 MDA 2019

            Appeal from the PCRA Order Entered June 17, 2019
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0001004-2014


BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

OPINION BY BOWES, J.:                         FILED SEPTEMBER 15, 2020

     Tasai Betts appeals from the trial court’s June 17, 2019 order dismissing

his petition for relief under the Post-Conviction Relief Act (“PCRA”).   After

careful review, we vacate the order and remand with instructions.

     The factual and procedural history of this case concerns two episodes of

criminal behavior. On the evening of June 13, 2013, a man sleeping in his car

near the 1700 block of Miller Street in Harrisburg, Pennsylvania, was shot and
J-S28010-20


robbed by a masked assailant. In a separate incident, Appellant was arrested

on June 22, 2013, following a lengthy vehicle pursuit with the Swatara

Township and Highspire Police Departments on Interstate 83, which ended in

an officer-involved crash. See N.T. Trial, 3/2/15, at 14-17. Officers recovered

two handguns from Appellant’s car, one of which was forensically linked to the

aforementioned shooting.

      In connection with the shooting at docket number CP-22-CR-0001004-

2014 (“Docket No. 1004”), a jury convicted Appellant of attempted criminal

homicide, robbery, aggravated assault, carrying a firearm without a license,

and possession of a firearm by a minor. With respect to the vehicle chase and

ensuing crash at docket number CP-22-CR-0003339-2013 (“Docket No.

3339”), a jury convicted Appellant of aggravated assault, four counts of

recklessly endangering another person (“REAP”), possession of a firearm with

an altered manufacturer number, possession of a firearm by a minor, carrying

a firearm without a license, fleeing and eluding, possession of a controlled

substance, and possession of drug paraphernalia.

      On May 14, 2015, the trial court sentenced Appellant at both dockets to

an aggregate term of twenty-one to forty-two years of imprisonment, followed

by fifteen years of probation. On direct appeal, this Court affirmed Appellant’s

judgment of sentence.      See Commonwealth v. Betts, 

(Pa.Super. 2016) (unpublished memorandum).            On July 10, 2017, our




                                     -2-
J-S28010-20


Supreme Court denied Appellant’s petition for allowance of appeal.          See

Commonwealth v. Betts, 

 (Pa. 2017) (per curiam order).

       Appellant filed a timely pro se PCRA petition alleging, inter alia, that

appellate counsel had erred by challenging the weight, but not the sufficiency,

of the evidence underlying Appellant’s convictions.        See PCRA Petition,

11/8/17, at 12-13. Damian DeStefano, Esquire, was appointed to represent

Appellant. He filed a supplemental PCRA memorandum arguing, inter alia,

that Appellant’s trial counsel was ineffective by “opening the door” to the

introduction of statements that Appellant had previously robbed another an

individual named Robert Parker, Jr. at gunpoint.1

       On August 1, 2019, a PCRA hearing was held. During that hearing, the

PCRA court heard testimony from both Appellant and his trial counsel

concerning the cross-examination of Mr. Parker.       See N.T. PCRA Hearing,

____________________________________________


1  At Appellant’s first trial at Docket No. 1004, an individual named Robert
Parker, Jr., testified for the Commonwealth that he had previously seen
Appellant in possession of the weapon linked to the shooting.               See
Commonwealth v. Betts, 

 (Pa.Super. 2016) (unpublished
memorandum at 4). On cross-examination, Mr. Parker testified that he was
particularly familiar with the specific firearm in question because Appellant
had pointed it at his head in a threatening manner on a previous occasion.
This statement related to a separate robbery incident that was pending at the
time of trial. As a result of this testimony, the trial court declared a mistrial
pursuant to Pa.R.E. 404(b). At Appellant’s re-trial, Mr. Parker again testified
on cross-examination that Appellant had pointed a gun at his head. Appellant
made another motion for a mistrial, but this time the trial court denied it.
Specifically, the trial court held that Mr. Parker’s “testimony was permitted for
identification purposes.” Betts, supra at 4. The trial court also issued a
limiting instruction to the jury.



                                           -3-
J-S28010-20


8/1/19, at 2-16. After entertaining briefs from both parties, the trial court

filed an opinion concluding that trial counsel did not render ineffective

assistance. See Memorandum Opinion and Order, 12/31/18, at 8-10. The

order attached to the opinion notified Appellant of the PCRA court’s intent to

dismiss his petition, and provided him an opportunity to respond pursuant to

Pa.R.Crim.P. 907.2 Id.

       Attorney DeStefano submitted a reply to the notice of dismissal that

largely reiterated the prior arguments concerning trial counsel’s allegedly

erroneous cross-examination. See Response to Notice of Intent to Dismiss,

1/22/19, at ¶¶ 2(a)-(g).        Two days later, Appellant filed pro se objections

alleging that Attorney DeStefano had rendered ineffective assistance by failing

to: (1) assert trial counsel’s ineffectiveness for failing to refute fingerprint

evidence tying Appellant to the crashed vehicle; and (2) raise direct appellate

counsel’s ineffectiveness for failing to seek a new trial on the basis of allegedly

inconsistent statements made by Mr. Parker post-trial.3 See Appellant’s Pro


____________________________________________


2  It is unclear why the PCRA court elected to enter such a notice in this case,
as a hearing had already been held when the PCRA court provided notice of
its intent to dismiss. However, there is nothing in the text of the rule explicitly
prohibiting such a procedure. See Pa.R.Crim.P. 907(1) (indicating that the
absence of an evidentiary hearing is not a prerequisite to the court’s entry of
notice of its intent to dismiss).

3 Specifically, Appellant alleged that Mr. Parker stated he had intentionally
misidentified the at-issue firearm after the conclusion of the trial. See
Appellant’s Pro Se Objections, 1/24/19, at ¶ 2(b).



                                           -4-
J-S28010-20


Se Objections, 1/24/19, at ¶¶ 2(a)-(b).4 Appellant’s timely pro se objections

were accepted for filing and docketed in the trial court.5     See Trial Court

Consolidated Docket, 10/22/19, at #33.

____________________________________________


4  Criminal defendants may not ordinarily engage in hybrid representation.
See Commonwealth v. Jette, 

 (Pa. 2011). As discussed
further infra, Appellant’s pro se allegations of PCRA counsel ineffectiveness
were permitted under these circumstances. See Commonwealth v. Ford,

 (Pa.Super. 2012) (“[I]ssues of PCRA counsel
ineffectiveness must be raised in a serial PCRA petition or in response to a
notice of dismissal before the PCRA court.”).

5   Appellant filed this response two days outside of the 20-day window
contemplated by Rule 907(1). See Pa.R.Crim.P. 907(1). Our review of
Pennsylvania case law suggests that the failure to object within this 20-day
period can result in waiver. See Commonwealth v. Pitts, 

,
879 n.3 (Pa. 2009). Specifically, Appellant’s Rule 907(1) response period
expired on January 22, 2019, and his pro se objections were filed on January
24, 2019. However, Appellant was incarcerated at the time that he submitted
this filing, and is therefore entitled to the benefit of the “prisoner’s mailbox
rule.” See Commonwealth v. Little, 

 (Pa.Super. 1998)
(applying the mailbox rule to PCRA filings). Under this rule, submissions from
an incarcerated litigant are deemed to be filed when deposited into the prison
mailing system, or handed over to prison officials for mailing. 

Appellant’s pro se objections contain a certificate of service that is dated
January 14, 2019. There is no additional documentation indicating when
Appellant submitted this mailing to prison officials. However, “we are inclined
to accept any reasonably verifiable evidence of the date that the prisoner
deposits the [filing] with the prison authorities.” Commonwealth v. Perez,

 (Pa.Super. 2002) (emphasis added). Here, Appellant’s
filing was untimely by only two days. Given the inherent delays associated
with mail delivery and the totality of the circumstances, we conclude that
Appellant’s pro se response must have been deposited for mailing no later
than January 22, 2019. See Commonwealth v. Patterson, 

 (Pa.Super. 2007) (finding that a pro se submission that arrived late for
filing by three days was presumed timely despite a lack of supporting
documentation based on the date of delivery); see also Commonwealth v.
Johnson, 

 (Pa.Super. 2004) abrogated on separate



                                           -5-
J-S28010-20


       On June 17, 2019, the PCRA court entered a final order dismissing

Appellant’s PCRA petition. In the text of this order, the PCRA court referenced

only the arguments concerning trial counsel’s cross-examinations of Mr.

Parker. On July 10, 2019, Appellant filed a single pro se notice of appeal while

still represented by Attorney DeStefano. Five days later, Attorney DeStefano

submitted timely notices of appeal at both docket numbers noted above.6

That same day, he also filed a petition on Appellant’s behalf that purported to

seek permission to proceed pro se and requested a hearing pursuant to

Commonwealth v. Grazier, 

 (Pa. 1998).7

       On August 5, 2019, the Grazier hearing was held. However, Appellant

advised the PCRA court that he had not requested a Grazier hearing, but

wished to discuss his allegations of Attorney DeStefano’s ineffectiveness and

obtain substitute counsel. The following exchange took place:

       APPELLANT: Well, I thought that this hearing was to see if
       [Attorney DeStefano] was ineffective.


____________________________________________


grounds Commonwealth v. Robinson, 

 (Pa.Super. 2007)
(same). We also note that an extended holiday weekend immediately
preceded the end of the Rule 907 response time in this case, making it all the
more likely that Appellant’s filing was mailed prior to the expiration of the
applicable deadline. Thus, Appellant’s pro se objections were timely filed.

6   On August 13, 2019, we consolidated these appeals sua sponte.

7  The first indication of a breakdown in the relationship between Appellant
and Attorney DeStefano is a July 3, 2019 letter from Appellant. In that
correspondence, Appellant advises Attorney DeStefano of his desire to obtain
substitute representation, and asks Attorney DeStefano to withdraw from his
case. This correspondence makes no mention of Appellant proceeding pro se.

                                           -6-
J-S28010-20


       THE COURT: No, you never indicated that he was ineffective.

       APPELLANT: That’s what I thought this hearing was about, so I
       could raise the claim that –

       THE COURT: This hearing is to determine whether or not you can
       afford your own counsel or you’re gonna represent yourself or
       continue with [Attorney DeStefano].

       APPELLANT: Well, I will – I guess at this point in time I’m gonna
       represent myself.

N.T. Grazier Hearing, 8/5/19, at 4. After a colloquy, the PCRA court granted

Appellant leave to proceed pro se and Attorney DeStefano leave to withdraw.

       Appellant was directed to file a concise statement of errors pursuant to

Pa.R.A.P. 1925(b), and he timely complied.           The PCRA court filed a Rule

1925(a) opinion. Thereafter, Appellant filed a number of pro se applications,

which were denied. Then, Attorney DeStefano strangely filed an application

seeking remand on Appellant’s behalf.8           See Petition for Remand to Trial

Court, 11/5/19, at 1-6.        This filing asserted that Appellant had preserved

claims related to Attorney DeStefano’s alleged ineffectiveness.9       Id. at ¶¶

19(a)-(j). Thereafter, he apparently resumed representation of Appellant, and


____________________________________________


8   Attorney DeStefano remains listed as Appellant’s counsel in this Court. His
purported withdrawal took place several weeks after he filed counseled
notices of appeal on Appellant’s behalf. As a result, Attorney DeStefano was
automatically listed as counsel of record. See Pa.R.A.P. 907(b). As of the
filing of this opinion, no withdrawal documents have been filed in this Court.

9  Regardless of the circumstances, Attorney DeStefano is not permitted to
argue his own ineffectiveness. See Commonwealth v. Spotz, 

,
329 n.52 (Pa. 2011) (“[C]ounsel cannot argue his or her own
ineffectiveness.”).

                                           -7-
J-S28010-20


filed a brief on his behalf.    Appellant has not filed a pro se brief, and

contemporaneous filings cast significant doubt on the nature and extent of the

attorney-client relationship.   See Pro Se Motion for Enlargement of Time,

2/13/20, at ¶ 5 (“As it stands, it is unclear whether Appellant is actually pro

se or is still represented by [Attorney DeStefano].”).

      The brief filed on Appellant’s behalf by Attorney DeStefano raises the

following issue for our review:      “Whether the trial court erred when it

dismissed Appellant’s petition for post[-]conviction relief following an

evidentiary hearing regarding ineffectiveness of trial counsel?”      Appellant’s

brief at 7 (excessive capitalization omitted).

      Our standard of review when considering an order dismissing a PCRA

petition is “whether that determination is supported by the evidence of record

and is free of legal error. The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record.” Commonwealth

v. Williams, 

 (Pa.Super. 2019) (citing Commonwealth

v. Johnston, 

 (Pa.Super. 2012)).

      Before addressing the argument presented by Attorney DeStefano, we

are compelled to address a number of procedural irregularities in this case

concerning Appellant’s allegations of PCRA counsel’s ineffectiveness, and the

PCRA court’s treatment of those claims. Specifically, “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


                                      -8-
J-S28010-20


remand for the PCRA court to correct that mistake.”          Commonwealth v.

Stossel, 

 (Pa.Super. 2011).

      As this is Appellant’s first PCRA petition, he enjoys a well-recognized

right to legal representation during this initial collateral review of his judgment

of sentence. See Commonwealth v. Albert, 

 (Pa. 1989)

(“[I]n this Commonwealth one who is indigent is entitled to the appointment

of counsel to assist with an initial collateral attack after judgment of

sentence.”). In this context, “the right to counsel conferred on initial PCRA

review means ‘an enforceable right’ to the effective assistance of counsel.”

See Commonwealth v. Holmes, 

 (Pa. 2013) (quoting

Commonwealth v. Albrecht, 

 (Pa. 1998)).

      While the existence of this right is well-established, the procedure for

its enforcement, i.e., raising allegations of PCRA counsel’s ineffectiveness,

remains ill-defined under Pennsylvania law:

      [T]here is no formal mechanism in the PCRA for a second round
      of collateral attack focusing upon the performance of PCRA
      counsel, much less is there a formal mechanism designed to
      specifically capture claims of [previous counsel’s] ineffectiveness
      defaulted by initial-review PCRA counsel. Frankly, this Court has
      struggled with the question of how to enforce the “enforceable”
      right to effective PCRA counsel within the strictures of the
      PCRA . . . . The question of whether and how to vindicate the
      right to effective PCRA counsel has been discussed at length in
      majority opinions and in responsive opinions . . . . But, the
      Justices have not been of one mind respecting how to resolve the
      issue, and no definitive resolution has emerged.

. Stated more succinctly, “since petitioners are not

authorized to pursue hybrid representation and counsel cannot allege [their]

                                       -9-
J-S28010-20


own ineffectiveness, claims of PCRA counsel ineffectiveness cannot ordinarily

be raised in state post-conviction proceedings[.]”         Commonwealth v.

Rykard, 

 (Pa.Super. 2012) (emphasis added).

      However, our Supreme Court also concomitantly requires counseled

PCRA petitioners to raise allegations of PCRA counsel’s ineffectiveness in

response to a Rule 907 notice of intent to dismiss, or risk waiver.         See

Commonwealth v. Pitts, 

, 880 n.4 (Pa. 2009). In Pitts, the

defendant raised allegations of PCRA counsel’s ineffectiveness for the first time

in a pro se appeal. A majority of our High Court determined that Pitts had

waived these claims because he did not raise these assertions in response to,

inter alia, the PCRA court’s Rule 907 notice. 

      Our Supreme Court explicitly rejected Pitts’ argument that hybrid

representation prevented him from raising these objections during the PCRA

proceedings, and while he was still represented by counsel:

      Although Pitts asserts his PCRA appeal was the first opportunity
      he had to challenge PCRA counsel’s stewardship because he was
      no longer represented by PCRA counsel, he could have challenged
      PCRA counsel’s stewardship after receiving counsel’s withdrawal
      letter [under Commonwealth v. Turner, 

 (Pa.
      1988) and Commonwealth v. Finley, 

 (Pa.Super.
      1988)] and the notice of the PCRA court’s intent to dismiss his
      petition pursuant to Pa.R.Crim.P. 907, yet he failed to do so.
      Thus, the issue of whether PCRA counsel was ineffective for failing
      to raise the direct appeal issue was waived[.]

 Subsequent interpretation of Pitts by both the Supreme Court and this

Court have reaffirmed this aspect of the holding. See Commonwealth v.

Robinson, 

, 184 n.8 (Pa. 2016); Commonwealth v. Henkel,

                                     - 10 -
J-S28010-20

 (Pa.Super. 2014) (en banc) (“[T]he Pitts majority mandated

that a petitioner raise any allegations of PCRA counsel ineffectiveness in

response to the PCRA court’s notice of dismissal.”).

       As described above, Appellant complied with our Supreme Court’s

mandate in Pitts by filing a timely objection to the PCRA court’s Rule 907

notice raising allegations of Attorney DeStefano’s ineffectiveness.10       See

Appellant’s Pro Se Objections, 1/24/19, at ¶¶ 2(a)-(b). Indeed, once the PCRA

court filed its Rule 907 notice, Appellant was required to raise these

allegations or waive them under existing precedent. Accord 

 at

880 n.4.      Despite the fact that Appellant was represented by Attorney

DeStefano at the time of filing, the certified record leaves no question that

Appellant raised and preserved these claims before the PCRA court.           

Critically, Appellant raised these claims before the entry of a final PCRA order.

       Unfortunately, it is equally clear from the certified record that the PCRA

court neither recognized the significance of this filing, nor considered its

contents prior to dismissing Appellant’s PCRA petition.11 See Order, 6/17/18

____________________________________________


10 We also note that Appellant raised these allegations before an appeal had
been taken in his case. Accordingly, he has also avoided the application of a
robust line of Pennsylvania precedent prohibiting PCRA petitioners from raising
such claims for the first time on appeal. See Commonwealth v. Robinson,

, 184 n.8 (Pa. 2016) (collecting cases), Commonwealth v.
Henkel, 

 (Pa.Super. 2014) (en banc) (same).

11  After it dismissed Appellant’s PCRA petition and permitted Attorney
DeStefano’s withdrawal, the PCRA court attempted to rectify this error by



                                          - 11 -
J-S28010-20


(acknowledging only the PCRA claims raised by Appellant’s counsel); see also

N.T. Grazier Hearing, 8/5/19, at 4. The PCRA court never even considered

Appellant’s procedurally-valid assertions of ineffectiveness until months after

the PCRA proceedings were closed. As a result, Appellant’s concerns were not

reviewed or investigated by the PCRA court in a meaningful way.

       More troubling, PCRA counsel also did not realize that Appellant had

raised these layered ineffectiveness claims until months after an appeal had

already been taken in Appellant’s case.             Compare Appellant’s Grazier

Petition, 7/15/19, at ¶¶ 1-12 (neglecting to mention any of Appellant’s claims

of PCRA counsel’s ineffectiveness) with Appellant’s Application for Remand,

11/5/19, at ¶¶ 9, 19 (“It is believed and therefore averred that this matter

should be remanded to the [PCRA] court to address Appellant’s claims that

PCRA counsel was ineffective[.]”). Our chief concern is that Appellant never

received the      assistance     of counsel    in   arguing   the   merits of these

ineffectiveness claims to the PCRA court.

       As noted above, Appellant unambiguously voiced his dissatisfaction with

Attorney DeStefano’s representation and asked to end their attorney-client

relationship in a July 3, 2019 letter.         Thereafter, he raised allegations of

ineffectiveness in the PCRA court, which were largely ignored.


____________________________________________


eventually addressing Appellant’s claims in its Rule 1925(a) opinion. See Rule
1925(a) Opinion, 10/22/19, at 10-12 (concluding Appellant’s “layered” claims
of PCRA counsel’s ineffectiveness were meritless).         By that point, the
deprivation of Appellant’s right to counsel was already a fait accompli.

                                          - 12 -
J-S28010-20


        Appellant’s rule-based right to effective counsel extends throughout the

entirety of his first PCRA proceeding. See 

; 

 at 22-23 (citing Pa.R.Crim.P. 904(F)(2)). Necessarily, Appellant had a

right    to   effective   counsel     when       he   alleged   Attorney   DeStefano’s

ineffectiveness in response to the PCRA court’s Rule 907 notice. 

 However,

as a matter of Pennsylvania law, he could not rely upon his appointed counsel

to assist him in this specific context. See Commonwealth v. Spotz, 

, 329 n.52 (Pa. 2011) (“[C]ounsel cannot argue his or her own

ineffectiveness[.]”); see also, e.g., Commonwealth v. Ellis, 

 (Pa. 1993) (“[U]nder no other circumstances are counsel and client

permitted to present opposing arguments[.]”).

        In this specific context, Appellant’s timely allegations of ineffectiveness

created a “substantial” and “irreconcilable” conflict in his relationship with

Attorney DeStefano.        See Pa.R.Crim.P. 122(C) (“A motion for change of

counsel by a defendant for whom counsel has been appointed shall not be

granted except for substantial reasons.”);12 Commonwealth v. Jette, 

, 1041 n.10 (Pa. 2011) (“To satisfy this standard, a defendant must

demonstrate he has an irreconcilable difference with counsel that precludes

counsel from representing him.”).              Our case law is replete with instances

where allegations of ineffectiveness have necessitated the appointment of


____________________________________________


12  We note that Appellant’s response to the PCRA court’s Rule 907 notice
included a request for the appointment of new counsel.

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J-S28010-20


substitute counsel in the post-collateral context. See, e.g., Commonwealth

v. Fox, 

 (Pa. 1978) (“[W]e cannot assume that appellant’s

PCHA counsel adequately advised appellant of his own inadequacies . . . .”)

(citing Commonwealth v. Sherard, 

 (Pa. 1977) (same)).

      Instantly, Attorney DeStefano was faced with the impossible choices of:

(1) taking no action, or rejecting Appellant’s assertions of ineffectiveness,

thereby narrowing Appellant’s available claims for relief and opposing his

client’s interests; or (2) confirming Appellant’s assertions and assisting

Appellant in pursuing them while he still represented Appellant. Either choice

would be objectionable under Pennsylvania law. Accord 

 at 329

n.52; 

. And while Appellant had an obligation to raise

these claims, we do not believe that Pitts requires him to shoulder the heavy

burden of establishing his right to relief without the assistance of counsel.

Requiring Appellant to make substantive pro se arguments would undermine

his efforts to obtain collateral relief. See, e.g., Commonwealth v. Jette, 

 (Pa. 2011) (“[P]ermitting the pro se brief may involve a

conflict between lawyer and client, and this conflict could undermine

appellant’s chance of success[.]”).    Such a conclusion would subvert the

purpose of Appellant’s entitlement to the effective assistance of counsel.

      In sum, we believe that Appellant is entitled to remand for the

appointment of substitute PCRA counsel to prosecute these abeyant claims of




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J-S28010-20


ineffectiveness. Our Supreme Court has opined that remand and appointment

of new PCRA counsel is appropriate in such circumstances:

       An indigent petitioner has the right to appointment of counsel to
       assist in prosecuting a first PCRA petition. Where that right has
       been effectively denied by the action of court or counsel, the
       petitioner is entitled to remand to the PCRA court for appointment
       of counsel to prosecute the PCRA petition. The remand serves to
       give the petitioner the benefit of competent counsel at each stage
       of post-conviction review.

Commonwealth v. Kenney, 

 (Pa. 1999); see also

Commonwealth v. Cox, 

 (Pa. 2019) (affirming Kenney

for the proposition that “remand for appointment of counsel is appropriate

remedy when the right to appointment counsel has been effectively denied”).

       We are cognizant that an indigent defendant’s entitlement to the

assistance of counsel “does not include the right to counsel of the defendant’s

choice.” Commonwealth v. Tighe, 

 (Pa.Super. 2018).

However, we can discern no other mechanism other than the appointment of

substitute PCRA counsel to ensure that Appellant’s interests are adequately

represented and his right to counsel fully realized. The failure of the PCRA

court to properly respond to Appellant’s assertions of ineffectiveness, coupled

with the inability of Attorney DeStefano to meaningfully represent Appellant

once   these   allegations   had   been   advanced,   collectively   undermined




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J-S28010-20


Appellant’s right to the effective assistance of counsel.13      Remand for the

appointment of new PCRA counsel is the solution to the conundrum posed by

the procedural irregularities in this case.14 Accord 

;

____________________________________________


13    Appellant’s assertions of Attorney DeStefano’s ineffectiveness may
ultimately prove meritless. Our holding is concerned only with ensuring those
claims are given proper consideration. Due to the nature of our holding, we
express no opinion on the arguable merit of Appellant’s assertions. That is
the province of the PCRA court. See Commonwealth v. Kenney, 

 (Pa. 1999) (“In reaching the merits of the instant claim by
disregarding the proceedings in the PCRA court, the Superior Court acted as
a secondary PCRA court. This was error.”); Commonwealth v. Williams,

 (Pa.Super. 2017) (same). We also note that Appellant’s
entitlement to the effective assistance of counsel is not predicated upon the
existence of meritorious issues. See, e.g., Commonwealth v. Kelsey, 

 (Pa.Super. 2019) (holding first-time PCRA petitioner is
entitled to the assistance of counsel in presenting even facially meritless pro
se allegations of error).

14 We also note our significant concerns regarding the Grazier procedure that
was utilized in this case. First, the PCRA court erred in conducting a Grazier
hearing during the pendency of this appeal, and without any notice to this
Court. See Pa.R.A.P. 1701(a) (“[A]fter an appeal is taken . . ., the trial court
or other government unit may no longer proceed further in the matter.”). In
effect, the instant appeal deprived the trial court of jurisdiction to take any
such actions unless this Court remanded with specific instructions. See, e.g.,
Commonwealth v. Pearson, 

 (Pa.Super. 1996)
(holding that the filing of an appeal divests the trial court of jurisdiction to
take any actions that are not “ministerial” or “ancillary” in nature). Here,
Appellant’s decision to proceed pro se was not a mere incidental development,
but one which had critical implications for the nature and extent of his
potential appellate arguments. As such, Rule 1701(a) applies. 

We are also struck by the additional layer of procedural dissonance that
confronts us as a result of this error. Despite the invalid Grazier hearing,
Appellant’s attempted waiver of his right to representation, and Appellant’s
on-the-record statements asserting his desire to proceed pro se, PCRA counsel
continued to represent Appellant and filed an appellate brief on his behalf.
This is particularly perplexing in light of the knowledge that Appellant originally



                                          - 16 -
J-S28010-20


see also, e.g., Commonwealth v. Williams, 

 (Pa.Super.

2017) (“[T]he best resolution of this case is to vacate and remand for

[substitute] PCRA appellate counsel to file a new amended PCRA petition on

Appellant’s behalf and for further proceedings.”); Commonwealth v. Willis,

 (Pa.Super. 2011) (remanding for appointment of new PCRA

counsel where both the PCRA court and prior PCRA counsel were “responsible”

for the effective denial of a PCRA petitioner’s right to counsel).

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

to represent Appellant.        Newly-appointed PCRA counsel shall: (1) review

Appellant’s pro se objections concerning Attorney DeStefano’s ineffectiveness;

(2) file supplemental briefing limited to discussing the merits of those claims

within a reasonable time frame; and (3) continue to represent Appellant for

the duration of these PCRA proceedings. The Commonwealth shall have an

opportunity to file a response to any supplemental filings from Appellant.

Thereafter, the PCRA court shall have the discretion to proceed as it deems fit



____________________________________________


sought to end his relationship with former PCRA counsel over disagreements
concerning the issues to be raised in this appeal. It is entirely unclear from
the certified record whether Appellant and PCRA counsel reached some accord
to continue their attorney-client relationship, or if Appellant continued to labor
under the mistaken belief that he is a pro se litigant while PCRA counsel
submits filings on his behalf without his knowledge.

This error, alone, would require remand. See, e.g., Commonwealth v.
Robinson, 

 (Pa.Super. 2009) (en banc) (“We hold that in
any case where a defendant seeks self-representation in a PCRA proceeding
and where counsel has not properly withdrawn, a hearing must be held.”).

                                          - 17 -
J-S28010-20


under Pennsylvania law and the Pennsylvania Rules of Criminal Procedure,

including ordering further proceedings and granting or denying Appellant’s

PCRA petition.

     Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2020




                                  - 18 -