J-S72005-16

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DEATHRICE DWAYNE GRAY

Appellant No. 41 MDA 2016

Appeal from the Judgment of Sentence December 11, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0001900-2014

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 06, 2016

Appellant, Deathrice Dwayne Gray, appeals pro se from the judgment 

of sentence entered in the Luzerne County Court of Common Pleas, following 

his bench trial conviction for possession of a controlled substance (heroin).1 

For the following reasons, we remand the matter with instructions and 

relinquish jurisdiction. 

The relevant facts and procedural history of this case are as follows. 

On February 12, 2014, police executed a search warrant at a residence in 

Hazleton, Pennsylvania. Police discovered money, drugs, and drug 

paraphernalia in the residence in close proximity to Appellant. The 

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1 35 P.S. § 780-113(a)(16). 
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Commonwealth charged Appellant with possession of a controlled substance 

with the intent to deliver and simple possession. Appellant initially retained 

private counsel to defend against the charges. Private counsel filed a motion 

to withdraw on November 24, 2014, claiming Appellant had not honored 

their fee agreement and citing Appellant’s complaints that he could no longer 

afford private counsel. The court granted counsel’s motion and directed 

Appellant to apply for representation with the Public Defender’s Office. 

Appellant complied and obtained representation from the Public Defender. 

Several months later, however, the Public Defender sought to withdraw due 

to a conflict of interest. On April 7, 2015, the court appointed conflict 

counsel. Conflict counsel later withdrew his appearance, citing a breakdown 

in the attorney/client relationship. According to Appellant, conflict counsel 

failed to communicate with him; so, Appellant borrowed money from family 

and friends to retain private counsel for trial. 

Appellant proceeded to a bench trial on October 23, 2015, and was 

convicted of simple possession on October 26, 2015. On December 11, 

2015, the court sentenced Appellant to 6-23 months’ imprisonment. After 

sentencing, the court permitted counsel to withdraw. Appellant timely filed 

a pro se notice of appeal on December 24, 2015. On January 20, 2016, the 

court ordered Appellant to file a Pa.R.A.P. 1925(b) statement, which 

Appellant timely filed pro se on January 27, 2016. Appellant filed an 

untimely post-sentence motion to reduce his sentence on February 5, 2016, 
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which the court denied on February 11, 2016, for lack of jurisdiction due to 

the pending appeal. 

On February 24, 2016, Appellant filed a pro se motion in the trial court 

requesting appointment of counsel for his appeal, claiming he could not 

afford counsel. The court did not rule on the motion. On April 21, 2016, 

Appellant filed an application for appointment of counsel in this Court, which 

this Court denied without prejudice, directing Appellant to seek relief in the 

trial court. Appellant filed another motion in the trial court for appointment 

of counsel on May 18, 2016; the court did not rule on that motion either. In 

light of Appellant’s allegations of indigency and repeated requests for 

counsel, on September 19, 2016, this Court remanded the matter to 

determine indigency status and/or consider the appointment of counsel in 

the interests of justice. Upon remand, the trial court scheduled a hearing for 

October 5, 2016. On October 11, 2016, the trial court notified this Court 

that it was unable to assess Appellant’s indigency status because Appellant 

failed to appear at the hearing. The record shows the court sent notice of 

the hearing to an address where Appellant no longer resides.2 

As a preliminary matter, Pennsylvania Rule of Criminal Procedure 122 

provides:

Rule 122. Appointment of Counsel

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2

In a separate motion filed in this Court on October 27, 2016, Appellant 

explained why he did not receive notice of the hearing and failed to attend. 
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(A) Counsel shall be appointed:

* * *

(2) in all court cases, prior to the preliminary hearing 

to all defendants who are without financial resources or 

who are otherwise unable to employ counsel;

(3) in all cases, by the court, on its own motion, when 

the interests of justice require it. 

(B) When counsel is appointed,

* * *

(2) the appointment shall be effective until final 

judgment, including any proceedings upon direct appeal. 

Pa.R.Crim.P. 122(A), (B). Under paragraph (A)(3), the court has authority 

to appoint counsel regardless of eligibility, when the interests of justice 

require it. Pa.R.Crim.P. 122, Comment; Commonwealth v. Cannon, 954 

A.2d 1222 (Pa.Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 893 

(2009) (explaining Rule 122 authorizes court to conduct case-by-case 

evaluations of individual defendants’ circumstances to ascertain whether 

counsel should be appointed). 

Instantly, given the significant rights at issue, and in the interests of 

justice, we decline to proceed with the pro se appeal. The better resolution 

at this point is to remand this case to the trial court for appointment of 

counsel within ten (10) days to communicate with Appellant about the 

issue(s) he wants to pursue on appeal. Because Appellant appears to seek, 

inter alia, reconsideration of his sentence, appointed counsel must file post-
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sentence motions nunc pro tunc within ten (10) days of counsel’s 

appointment, to preserve Appellant’s sentencing challenge and to restore his 

appellate rights. Following disposition of the post-sentence motions nunc 

pro tunc, either party can file a timely appeal. Counsel must also verify 

Appellant’s current mailing address and confirm the court has the correct 

address on file.

Case remanded with instructions. Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016