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 f rom 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 proceeding s. 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 g uilty 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.J. S53038/17

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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] timel y 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 hi s 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 fi led 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 o rder
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 connectionJ. S53038/17

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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, couns el 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 refle cts 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 proc eed 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 - the
record determination as to whether the [a]ppellant’s waiver of counsel is
knowing, intelligent and volunt ary, 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,J. S53038/17

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-

9/15/16 (emphasis added). ) On September 30, 2016, the PCRA c ourt

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 GRANTE D.
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 recor d 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 determ ine 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 whetherJ. S53038/17

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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 v oluntary 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: 11/13/2 017