J. S53038/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ROBERT SPIVEY, : No. 1330 EDA 2016

:

 Appellant :

Appeal from the PCRA Order, April 8, 2016,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0000470-2012

BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 13, 2017

Robert Spivey appeals pro se from the April 8, 2016 order entered in 

the Court of Common Pleas of Philadelphia County which dismissed, without 

a hearing, his petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We remand for further proceedings.

The PCRA court set forth the following procedural history:

On October 24, 2011, [appellant] was arrested 

and charged with Murder and related offenses. On 

March 4, 2013, [appellant] elected to be tried by a 

jury. On March 8, 2013, the jury returned guilty 

verdicts to First-Degree Murder and Carrying a 

Firearm in Public in Philadelphia.[1][Footnote 1] 

Sentencing was deferred until April 1, 2013, at which 

time this Court imposed a mandatory sentence of life 

imprisonment without parole for First-Degree 

Murder, with a concurrent sentence of one to two 

years for Carrying a Firearm in Public in Philadelphia.

 

1 18 Pa.C.S.A. §§ 2502(a) and 6108, respectively.
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[Footnote 1] All other charges were 

nolle prossed.

On May 1, 2013, [appellant] filed a timely 

Notice of Appeal. On May 29, 2013, [appellant] filed

a timely [Pa.R.A.P.] 1925(b) statement. [. . .] On 

June 6, 2013, this Court filed its opinion finding 

[appellant’s] claims meritless. On February 21, 

2014, [the] Superior Court affirmed the judgment of 

sentence.

On September 9, 2014, [appellant] timely filed 

a [PCRA] petition and motion to proceed pro se. On 

October 23, 2015, this Court held a Grazier hearing 

in which [appellant] requested counsel to be 

appointed. On the same day, David Rudenstein, 

Esquire was appointed as PCRA counsel and entered 

his appearance.

On January 6, 2016, appointed PCRA counsel 

filed an amended petition. On January 22, 2016, 

private counsel, Mary Maran, Esquire entered her 

appearance. Maran did not file a supplemental 

petition. On March 4, 2016, the Commonwealth filed 

a response to appointed PCRA counsel’s amended 

petition. On March 8, 2016, this Court found 

[appellant’s] claims meritless and filed a Notice of 

Intent to Dismiss under Pa.R.Crim.P. 907. On 

March 28, 2016, in response to this Court’s 907 

Notice, Maran filed a “Motion to Reconsider Denial of 

PCRA” on [appellant’s] behalf.

PCRA court opinion, 4/8/16 at 1-2 (footnote 2 omitted).

The record reflects that on April 8, 2016, the PCRA court denied 

appellant’s motion to reconsider denial of PCRA and entered an order 

dismissing appellant’s PCRA petition. On April 27, 2016, Attorney Maran 

filed a motion to withdraw representation and for appointment of counsel 

averring that she had been retained to represent appellant in connection 
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with his PCRA petition only and that she had fulfilled that obligation. (Motion 

to withdraw representation and for appointment of counsel, 4/27/16; docket 

# 25.) In that motion, Attorney Maran also averred that “[p]ursuant to 

[appellant’s] request to exercise his right of appeal, counsel has filed a 

Notice of Appeal to the Superior Court and served all parties.” (Id.) 

Appellant’s notice of appeal was docketed on April 27, 2016. (Notice of 

appeal, 4/27/16; docket # 24.)

The record further demonstrates that on April 29, 2016, the PCRA

court granted Attorney Maran’s motion to withdraw as counsel. The lower 

court docket reveals that on May 3, 2016, Attorney Todd Michael Mosser 

entered his appearance on behalf of appellant, and an “appointment notice” 

was filed. The record further reflects that the PCRA court did not order 

appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and the PCRA court did not file a 

Rule 1925(a) opinion.

On August 24, 2016, appellant filed an application to proceed pro se

on appeal with this court. On September 15, 2016, this court entered a 

per curiam order that directed the PCRA court “to conduct an on-therecord determination as to whether the [a]ppellant’s waiver of counsel is 

knowing, intelligent and voluntary, pursuant to Commonwealth v. Grazier, 

713 A.2d 81 (Pa. 1998), and to provide written notice of its determination 

to the Prothonotary of this Court within sixty (60) days.” (Order of court, 
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9/15/16 (emphasis added).) On September 30, 2016, the PCRA court 

entered the following order, which it filed in this court on March 3, 2017:

AND NOW, this 30th day of September, 2016, 

after consideration of the Motion Proceed [sic] 

Pro Se by [appellant,] it is ORDERED that the 

Motion Proceed [sic] Pro Se is GRANTED.

PCRA Hearing. Defense Motion to Proceed Pro Se is 

GRANTED. Previous Defense Counsel Todd Mosser is 

Ordered to Send [appellant] Any Documents in 

Relation to this Case. [. . .] Atty: Todd Mosser is 

Removed, [appellant] Pro Se[.]

Order of court, 9/30/16.

The PCRA court, however, did not file the Grazier hearing transcript

for our review. The information available to this court reveals that no 

transcript was filed because the PCRA court did not hold the September 30, 

2016 Grazier hearing on the record in accordance with that part of this 

court’s September 15, 2016 per curiam order that directed it “to conduct 

an on-the-record determination as to whether the [a]ppellant’s waiver of 

counsel is knowing, intelligent and voluntary, pursuant to [Grazier].” 

(Order of court, 9/15/16 (emphasis added).) It is well settled that in the 

context of the PCRA, where the right to counsel is statutorily provided, a 

petitioner choosing to waive that right can only do so after an on-the-record

colloquy is held to determine whether petitioner’s waiver is knowing, 

intelligent, and voluntary. Grazier, 713 A.2d at 82.

Therefore, we must once again remand to the PCRA court and direct it 

to conduct the requisite on-the-record colloquy to determine whether 
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appellant’s waiver of counsel is knowing, intelligent, and voluntary pursuant 

to Grazier, 713 A.2d 81; file the Grazier hearing transcript with this court; 

and provide written notice of its determination of whether appellant’s waiver 

of counsel is knowing, intelligent, and voluntary within 45 days of the date of 

the filing of this memorandum.

Remanded with instructions. Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2017