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

v.

ERIC C. MCCOLLISTER

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 663 EDA 2017 Appeal from the PCRA Order February 2, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP

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- CR

- 0002043

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BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 27, 2018 Appellant, Eric C. McCollister, appeals pro se from the February 2, 2017 order that denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541

- 9546. We vacate and remand for further proceed ings

. On May 2, 2008, a jury convicted Appellant of two counts of robbery, two counts of aggravated assault, and one count each of burglary, criminal trespass, and simple assault. 1 On December 29, 2008, the trial court sentenced Appellant to an aggregate term of forty years to life imprisonment. The sentence included a twenty

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- year mandatory minimum sentence imposed pursuant to 42 Pa.C.S. § 9714(a)(2). On

_________________ __________ ______ ____ _______ 1 18 Pa.C.S. §§ 3701, 2702, 3502, 3503, and 2701, respectively.J

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January 2, 2009, Appellant filed a counseled post

- sentence motion that the trial court denied o n April 21, 2009. On April 23, 2009, Appellant filed a timely appeal to this Court , and o n April 28, 2009, Appellant filed a motion to proceed pro se . The trial court held a Grazier 2 hearing on October 13, 2009, to determine if Appellant ’ s waive r of coun sel was knowing, intelligent, and voluntary. The trial court subsequently granted Appellant ’ s motion and permitted Appellant to represen t himself. On August 30, 2010, this Court affirmed Appellant ’ s judgment of sentence. Commonwealth v. McCollister , 11 A.3d 1042, 1401 EDA 2009 (Pa. Super. filed August 30, 2010) (unpublished memorandum). Appellant did not seek allowance of appeal in the Pennsylvania Supreme Court. On January 5, 2015, Appellant filed a pro se PCRA petition. The PCRA court appointed Att orney Sharon Meisler to represent Appellant , and Attorney Meisler filed an amended PCRA petition on October 26, 2015. On November 24, 2015, the Commonwealth filed a motion to dismiss Appellant ’ s PCRA petition. The PCRA court held a hearing on the Commonw ealth ’ s motion to dismiss on March 16, 2016. On April 6, 2016, the PCRA court sent Appellant notice of its intent to dismiss the PCRA petition pursuant to Pa.R. Crim.P

. 907

.

_________________ __________ ______ ____ _______ 2 Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).J

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In response to the Rule 907 notice, on April 19, 2016, Appellant filed a
pro se m otion for removal of counsel and appointment of new counsel. On June 8, 2016, the PCRA court held a hearing on Appellant ’ s motion. On June 30, 2016, the PCRA court permitted Attorney Meisler to withdraw and appointed Attorney Henry Hilles as Appellant’s counsel. The PCRA court allowed Attorney Hilles to file a second amended PCRA petition on October 12, 2016. The Commonwealth filed a motion to dismiss the second amended PCRA petition , and on November 21, 2016, the PCRA court held a hearing. On February 2, 2017, the PCRA court denied Appellant ’ s second amended PCRA petition. In the time period between November 21 , 2016 and February 2 , 2017, Appellant filed numerous pro se documents seeking the removal of Attorney Hilles as counsel and indicating that he wanted to proceed pro se or engage private counsel

. Pro se document, 12/1/16, at Docket Entry 53; Pro se document, 12/5/16, at Docket Entry 54; and Pro se document, 2/7/17, at Docket Entry 57. The PCRA court did not act on these r equests prior to denying Appellant’s second amended PCRA petition. On February 14, 2017 , after receiving notice of the denial of his second amended PCRA petition, Appellant filed a pro se notice of appeal and statement of errors complained of on appeal pu rsuant to Pa.R.A.P. 1925(b). That same day, Attorney Hilles filed a petition to withdraw , alleging that Appellant had expressed a desire to represent himself and was critical of Attorney Hilles’s representation.J

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Petition to Withdraw, 2/14/17, at 3

- 4. Ho wever, at no point did Attorney Hilles state that A ppellant’s PCRA petition had “no merit ” or otherwise comply with Turner/Finley

. 3 Nevertheless, o n March 17, 2017, without holding a hearing, the PCRA court permitted Attorney Hilles to withdraw and allowed Appellant to proceed pro se . Although the PCRA court has drafted a thorough Pa.R.A.P. 1925(a) opinion addressing the history of this matter and Appellant ’ s pro se appeal, we are constrained to point out that t he Pennsylvania Rules of Criminal Procedure and our case law require a colloquy prior to allowing an appellant to proceed pro se if counsel has not filed a Turner/Finley letter. See Pa.R.Crim.P. 121(A); Grazier , 713 A.2d at 82; Commonwealth v. Robinson , 970 A.2d 455, 460 (Pa. Super. 2009) ( en banc ) (stating that a colloquy must be held by the PCRA court where the defendant seeks to proceed pro se if PCRA counsel has not properly withdrawn pursuant to Turner/Finley ). Because the PCRA court did not conduct a Grazier hearing prio r to allowing Attorney Hill e s to withdraw as appellate PCRA counsel and as counsel did not file a Turner/Finely letter , we vacate the PCRA court ’ s February 2, 2017 order denying Appellant’s second amended PCRA petition

_________________ __________ ______ ____ _______ 3 See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ) , (setting forth the requirements for counsel seeking to withd raw in collateral proceedings).J

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and the subsequent March 17, 2017 order permitt ing Attorney Hilles to withdraw and allow ing Appellant to proceed pro se . Accordingly, Attorney Hilles remains counsel of record, and w e hereby remand this matter to the PCRA court for a Grazier hearing. At the conclusion of the Grazier hea ring, the PCRA court shall make a determination as to Appellant’s decision to waive counsel , enter a n order disposing of Appellant’s second amended PCRA petition , and apprise the parties of their appellate rights. Any appeal from the PCRA court’s forthcom ing order disposing of Appellant’s second amended PCRA petition shall be filed within thirty days from the date the PCRA court enters its order. Pa.R.A.P. 903. 4 Order s vacated. Case remanded for further proceedings consistent with this memorandum. Jurisd iction relinquished

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/27/18

_________________ __________ ______ ____ _______ 4 On December 5, 2017, Appellant filed a pro se r eply b rief, and on December 21, 2017, Appellant filed a pro se p ost
- submission motion requesting this Court accept for filing the December 5, 2017 r eply b rief. In light of our disposition, we DENY Appellant’s motion as moot.J

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