J-S51027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID SIMMS

Appellant No. 89 EDA 2016

Appeal from the PCRA Order November 30, 2015

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0004169-2009,

CP-15-CR-0004328-2009

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

JUDGMENT ORDER BY LAZARUS, J.: FILED AUGUST 30, 2016

David Simms appeals from the order entered in the Court of Common 

Pleas of Chester County, dismissing his petition filed pursuant to the Post 

Conviction Relief Act (PCRA).1 We vacate the order and remand.

In September 2009, Simms robbed two stores in Chester County, 

Pennsylvania. On August 2, 2010, Simms pled guilty to two counts of 

robbery and one count of fleeing or attempting to elude a police officer. 

Simms was sentenced to an aggregate term of 12 to 30 years’ incarceration. 

Simms filed a direct appeal of his judgment of sentence, which was affirmed 

by this Court on May 5, 2011. See Commonwealth v. Simms, 30 A.3d 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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530 (Pa. Super. 2011) (unpublished memorandum). Simms did not file a 

petition for allowance of appeal in the Pennsylvania Supreme Court. 

Simms filed the instant pro se PCRA petition on August 14, 2015. 

Counsel was not appointed. After issuing a notice pursuant to Pa.R.Crim.P. 

907 and receiving Simms’ objection, the PCRA court dismissed the petition 

on November 30, 2015. Simms filed a timely notice of appeal and courtordered concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b).2

Before we reach the merits of Simms’ appeal, we must address 

whether counsel should have been appointed to represent Simms, since the 

instant matter was initiated by Simms’ first PCRA petition. See

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

“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”).

An indigent petitioner is entitled to court-appointed counsel even if the 

first PCRA petition is untimely. Id. at 1288. Additionally, it is the PCRA 

court’s responsibility “before [disposing] of a first [PCRA] petition . . . [to] 

first make a determination as to the petitioner’s indigence and if the 

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2 Although Simms’ concise statement was received late, it was postmarked 

by the filing deadline. Accordingly, we consider it to be timely filed pursuant 

to the prisoner mailbox rule. See Commonwealth v. Little, 716 A.2d 

1287, 1288 (Pa. Super. 1998).
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petitioner is indigent, the court must appoint counsel.” Commonwealth v. 

Van Allen, 597 A.2d 1237, 1239 (Pa. Super. 1991). Even if a “first-time 

petitioner indicates in his pro se petition that he does not wish to be 

represented by an attorney, the PCRA court must still conduct a Grazier[3]

hearing . . . before permitting the petitioner to proceed pro se.” Stossel, 

supra at 1290. 

Here, Simms filed a first PCRA petition pro se. The PCRA court did not 

determine whether Simms was indigent, did not appoint counsel, and did not 

conduct a colloquy to determine whether Simms had waived his right to 

counsel. The record does not reveal that Simms ever argued that he was 

indigent, nor did he request a court-appointed attorney. However, in 

Stossel, this Court remanded the matter to the PCRA court even though 

“Stossel did not argue that he was entitled to counsel, or in any way 

challenge his waiver of that right, on appeal.” Id. Moreover, it is the PCRA 

court’s responsibility to determine whether the petitioner is indigent and to 

appoint counsel accordingly. Van Allen, supra. Thus, the trial court erred 

by not conducting such an inquiry.

Order vacated. Case remanded for further proceedings in accordance 

with this judgment order. Jurisdiction relinquished.

____________________________________________

3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/30/2016