J-S54020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LUIS ZAYAS CINTRON

Appellant No. 3189 EDA 2014

Appeal from the PCRA Order October 24, 2014

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0001712-2010

BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED OCTOBER 13, 2015

Appellant, Luis Zayas Cintron, appeals pro se from the order 

dismissing his pro se, first petition pursuant to the Post Conviction Relief Act 

(“PCRA”). As we conclude that the PCRA court erroneously permitted 

appointed counsel to withdraw his appearance, we vacate and remand for 

further proceedings.

Cintron was charged with various crimes arising from allegations that 

he had shot his landlord, Francisco Idrovo, in an apparent murder for hire 

plot. After a jury convicted him of attempted homicide, two counts of 

aggravated assault, two counts of simple assault, two counts of possessing 

instruments of crime, recklessly endangering another person and terroristic 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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threats, the trial court sentenced Cintron to an aggregate term of 

imprisonment of 280 months to 600 months. This Court affirmed the 

judgment of sentence, and on September 5, 2013, the Supreme Court of 

Pennsylvania denied Cintron’s petition for allowance of appeal.

On March 26, 2014, Cintron filed the instant pro se petition, raising 

multiple issues. Shortly thereafter, the PCRA court appointed Robert 

Brendza, Esq., to represent Cintron throughout the PCRA proceedings. 

According to documents subsequently filed by Cintron, a conflict arose 

several months later. Cintron demanded to see any amended PCRA petition 

before it was filed, but Attorney Brendza refused, asserting that Cintron had 

no such right. See Motion for Removal of Court-Appointed Counsel, filed 

9/16/14, at Exhibits A, B. 

Shortly thereafter, on August 29, Attorney Brendza filed a petition to 

withdraw as counsel, and attached a copy of his “no-merit” letter to Cintron. 

Cintron responded by filing multiple documents, including the 

aforementioned Motion for Removal of Court-Appointed Counsel. The PCRA 

court denied Cintron’s motion for removal of counsel on September 16.

On October 1, Cintron mailed a response to Attorney Brendza’s “nomerit” letter to the PCRA court. Cintron appended several letters he had 

sent to Attorney Brendza, prior to his petition to withdraw, detailing issues 

that Cintron wished to raise. On the next day, the PCRA court dismissed 

Cintron’s letter, stating that the letter constituted an ex parte, pro se
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communication with the court while Attorney Brendza still represented 

Cintron. See Order, 10/2/14, at fn. 1. 

Concurrently, the PCRA court filed a notice of intent to dismiss 

Cintron’s PCRA petition without a hearing, and noted its intent to grant 

counsel’s petition to withdraw. See Notice of Intent to Dismiss, 10/2/14 at 

1. In its notice, the PCRA court noted that it could not address Cintron’s 

claim that trial counsel had been ineffective in failing to impeach Idrovo’s 

testimony with his contradictory testimony at the preliminary hearing due to 

Cintron’s failure to file a certified copy of the preliminary hearing transcript. 

See id., at fn.1, p. 11.

Cintron responded to the notice with pro se objections. Among other 

issues, Cintron alleged that Attorney Brendza had been ineffective in failing 

to file certified copies of court records and trial transcripts. Specifically, 

Cintron identified Attorney Brendza’s failure to file certified transcripts of the 

preliminary hearing. See Petitioner’s Objections to Notice of Intent to 

Dismiss, 10/21/14, at 3-4 (pages in original unnumbered). 

Shortly thereafter, the PCRA court entered an order dismissing 

Cintron’s PCRA petition, and granting Attorney Brendza’s petition to 

withdraw. In particular, the PCRA court held that Cintron’s allegations of 

Attorney Brendza’s ineffectiveness were “not ripe,” and “procedurally 

improper,” and therefore refused to consider any claim of Attorney Brendza’s 

ineffectiveness. This timely appeal followed.
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On appeal, Cintron raises multiple issues for our review. However, we 

need not address any save Cintron’s claim that the PCRA court erred in 

permitting Attorney Brendza to withdraw.1 As we conclude that neither 

Attorney Brendza nor the PCRA court fulfilled the legal requirements for 

ending Cintron’s right to counsel, we will vacate the order dismissing 

Cintron’s petition and remand for appointment of counsel and further 

proceedings.

The Rules of Criminal Procedure clearly bestow a right to counsel for a 

petitioner’s first PCRA petition. See Pa.R.Crim.P. 904(C); see also

Commonwealth v. Smith, 818 A.2d 494 (Pa. 2003); Commonwealth v. 

Guthrie, 749 A.2d 502, 504 (Pa. Super. 2000); Commonwealth v. 

Kaufmann, 592 A.2d 691, 696 (Pa. Super. 1991). After being appointed to 

represent a first-time petitioner, counsel may only withdraw after following 

specific procedures. Our Supreme Court has summarized the procedure for 

withdrawal of court-appointed counsel in collateral attacks on criminal 

convictions as follows.

Independent review of the record by competent counsel is 

required before withdrawal is permitted. Such independent 

review requires proof of:

1) A “no-merit” letter by PCRA counsel detailing the nature and 

extent of his [or her] review;

____________________________________________

1 Cintron presents this argument couched in terms of Attorney Brendza’s 

ineffectiveness in filing the “no-merit” letter.
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2) A “no-merit” letter by PCRA counsel listing each issue the

petitioner wished to have reviewed;

3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of 

why the petitioner’s issues were meritless;

4) The PCRA court conducting its own independent review of the 

record; and

5) The PCRA court agreeing with counsel that the petition was 

meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009) (citations 

omitted). Additionally, this Court has added a requirement 

that PCRA counsel who seeks to withdraw must 

contemporaneously serve a copy on the petitioner of counsel’s 

application to withdraw as counsel, and must supply to the 

petitioner both a copy of the “no-merit” letter and a statement 

advising the petitioner that, in the event that the court grants 

the application of counsel to withdraw, he or she has the right to 

proceed pro se or with the assistance of privately retained 

counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) 

(emphasis omitted; citation omitted).

Here, Attorney Brendza filed a copy of his “no-merit” letter and served 

it upon Cintron. In his letter, Attorney Brendza identifies, but does not 

address, Cintron’s claim that trial counsel was ineffective for failing to 

impeach Idrovo with his testimony at the preliminary hearing. See “NoMerit” Letter, 8/29/14, at 5-6. This claim was included in Cintron’s pro se

PCRA petition. See Petition, 3/26/14, at additional page 28. As such, 

Attorney Brendza clearly failed to satisfy the dictates of Pitts.
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This error was compounded by Attorney Brendza’s failure to file 

certified transcripts of the preliminary hearing. As noted above, the PCRA 

court refused to address the issue in its order dismissing Cintron’s petition 

due to the absence of the transcript. Thus, the PCRA court did not reach 

this claim in its independent review of the record.

The PCRA court further compounded the error in failing to address 

Cintron’s claim of Attorney Brendza’s ineffectiveness in response to Cintron’s 

objections to the notice to dismiss. As the PCRA court now recognizes in its 

opinion on appeal, Cintron properly preserved and raised this claim in his 

timely objections to the PCRA court’s notice of intent to dismiss. See 

Commonwealth v. Rykard, 55 A.3d 1177, 1186 (Pa. Super. 2012). 

Having acknowledged that error, the PCRA court proceeds to address 

Cintron’s claim that Attorney Brendza had been ineffective in failing to file 

the transcript as follows.

In support of his PCRA claims, defendant relies on the victim’s 

preliminary hearing testimony. However, the alleged testimony 

is not part of the record in this case. We stress that Defendant 

is under no obligation to provide the Court with a copy of the 

preliminary hearing testimony. However, Defendant’s 

preliminary hearing occurred in a Magisterial District Court which 

is not a court of record. As such, Defendant’s preliminary 

hearing may not have been recorded, and even if recorded, 

would not have been transcribed absent an affirmative request 

by either the Commonwealth or Defendant. PCRA counsel was 

not counsel of record at the time of the preliminary hearing. 

Because only Defendant cites to the victim’s preliminary hearing 

testimony, we merely indicated in our Notice to Dismiss that it 

was his obligation to supply the Court with a certified transcript 

of the proceeding, if one existed. See Notice to Dismiss, 

10/2/14, at 11. The record in this case does not contain a 
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transcript of Defendant’s preliminary hearing. Accordingly, 

Defendant’s argument cannot form a successful basis on appeal.

Opinion on appeal, 2/9/15, at 4.

The PCRA court’s reasoning is troubling; it essentially required Cintron 

to have submitted a pro se filing at a time that the PCRA court was rejecting 

his pro se filings on account of Attorney Brendza’s continuing duty to 

represent Cintron. However, we need not address the issue, as we conclude 

that the PCRA court’s opinion is not an accurate description of the record. 

Contrary to the PCRA court’s assertion, Cintron was not the only party

to cite to the preliminary hearing transcripts. Attorney Brendza’s “no-merit” 

letter contains a pin-point cite to the preliminary hearing transcript. See 

“No-Merit” Letter, 8/29/14, at 6. As we must presume that Attorney 

Brendza was following the ethical dictates of the profession, we must 

conclude that he at the very least had access to a copy of the transcript. 

Thus, contrary to the PCRA court’s discussion quoted above, it was apparent 

before the PCRA court filed its notice to dismiss that: (a) the preliminary 

hearing had been recorded; (b) that the recording had been transcribed; and 

(c) that Attorney Brendza had cited to a transcript of the preliminary hearing 

in a court document.

Under these circumstances, we conclude that the PCRA court erred in 

permitting Attorney Brendza to withdraw, as neither Attorney Brendza, nor 

the PCRA court, has addressed the merit of Cintron’s claim that trial counsel 
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was ineffective in failing to impeach Idrovo with his preliminary hearing 

testimony.2 

Nor are we convinced that this error was harmless. Cintron contends 

that Idrovo’s testimony that this was a murder-for-hire plot was integral to 

the Commonwealth’s contention that Cintron intended to murder Idrovo. At 

trial, Idrovo testified that Cintron had locked him in the apartment, asked 

him to sit down at a table, drew a gun, and then informed Idrovo that he 

was hired by Idrovo’s ex-wife and her boyfried to kill Idrovo. See N.T., 

Trial, 6/21/11, at 73, 79. Idrovo testified that Cintron pulled the gun from 

the front of his waistband. See id., at 75.

Officer Stacey Harper testified that the table in Cintron’s apartment 

was white. See id., at 155. However, at the preliminary hearing, Idrovo 

testified that he saw Cintron pull the gun from his waistband through the 

glass table. See N.T., Preliminary Hearing, 5/7/10, at 19.

In its closing argument, the Commonwealth argued that Idrovo’s

testimony of the interaction in Cintron’s apartment constituted evidence of a 

specific intent to kill. See N.T., Closings and Jury Charge, 6/23/11, at 37. 

Thus, Idrovo’s credibility is tremendously important to the Commonwealth’s 

assertion that Cintron intended to kill Idrovo. While the discrepancy 

____________________________________________

2 A certified copy of the preliminary hearing transcript was subsequently 

made a part of the certified record on appeal due to the Commonwealth’s 

efforts.
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between Idrovo’s testimony at the preliminary hearing and Officer Harper’s 

testimony at trial might be considered minimal, we note that the defense 

had mounted a consistent attack on Idrovo’s credibility at trial. Given these 

circumstances, we refuse to address the issue of prejudice as a matter of 

first impression on appeal. Cintron is entitled to have counsel review the 

issue and either advocate it or discuss its lack of merit in an appropriate “nomerit” letter. Furthermore, Cintron is entitled to have the PCRA court 

conduct an independent review of this issue, with the benefit of the 

appropriate transcripts, after counsel has reviewed and addressed the issue. 

Assuming a subsequent appeal, our well-established duty would be to review 

the PCRA court’s decision for an error of law or an abuse of discretion.

Given the issues with Attorney Brendza’s failure to file a copy of the 

preliminary hearing transcript after citing it in his “no-merit” letter, we 

remand for appointment of new counsel to represent Cintron. We do not 

limit the scope of counsel’s representation; new counsel is to review the 

record and Cintron’s allegations and determine the best course forward. 

New counsel is free to adopt Attorney Brendza’s reasoning on the issues he 

did address, if, after an independent review, counsel concludes that it is 

appropriate to do so. In any event, new counsel must address, in the first 

instance, Cintron’s claim that trial counsel was ineffective in failing to 

impeach Idrovo’s credibility through the use of the preliminary hearing 

transcripts.
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Order vacated. Case remanded for appointment of new counsel and 

further proceedings consistent with this memorandum. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/13/2015