J-A23032-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

JAMES L. ZUCCHER 

 Appellant No. 1730 WDA 2014 

Appeal from the Judgment of Sentence October 1, 2014 

In the Court of Common Pleas of Mercer County 

Criminal Division at No(s): CP-43-CR-0000478-2014 

BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J. 

JUDGMENT ORDER BY GANTMAN, P.J.: FILED AUGUST 18, 2015 

 Appellant, James L. Zuccher, appeals from the judgment of sentence 

entered in the Mercer County Court of Common Pleas, following his nolo 

contendere plea to driving under the influence (“DUI”) and fleeing or 

attempting to elude police (“fleeing/eluding”) (75 Pa.C.S.A. §§ 3802; 3733). 

On March 9, 2014, police received a report that a man who appeared to be 

intoxicated was lying down in the parking lot of a bar and then got into his 

vehicle and drove away. Police followed the vehicle and activated lights to 

stop, but the man did not immediately pull over. Upon the stop, Officer 

Moore detected an odor of alcohol on the driver’s breath and placed the 

driver under arrest for DUI. Officer Moore recovered a driver’s license 

identifying the man as Appellant. Appellant attempted to retain a public 

defender, but his request was denied based on financial ineligibility. 
J-A23032-15 

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Nevertheless, the court appointed stand-by counsel. On August 12, 2014, 

Appellant pled nolo contendere to DUI and fleeing/eluding. The court 

sentenced Appellant on October 1, 2014, to 5 days to 6 months’ 

imprisonment for DUI and a concurrent 6 months’ probation for 

fleeing/eluding. Appellant timely filed a pro se notice of appeal on October 

20, 2014, and a praecipe to proceed in forma pauperis (“IFP”) that the court 

denied. On October 29, 2014, the court ordered Appellant to file a Pa.R.A.P. 

1925(b) concise statement; Appellant did not comply. 

Pennsylvania Rule of Criminal Procedure 122 provides: 

Rule 122. Appointment of Counsel 

(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. As well, “when a petitioner avers a 

prima facie case of poverty and an inability to pay fees and costs, the trial 

court must hold a hearing before it may deny IFP status.” Commonwealth 

v. Lepre, 18 A.3d 1225 (Pa.Super. 2011) (reversing denial of IFP status and 

remanding for hearing where petitioner stated inability to pay fees/costs and 
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his alleged debt obligations, child support, taxes, and living expenses 

presented prima facie case of poverty when weighed against monthly gross

income of $1,600). Instantly, the Public Defender’s Office denied Appellant’s 

request for counsel, based on financial ineligibility. The court also denied 

Appellant IFP status, without a hearing. In his IFP petition, Appellant alleged 

he earns only $1,800/month in social security and $270/month in pension 

and annuities. Appellant’s rent and utilities total almost $1,000/month. 

Appellant owes $250/month in loans and has other living expenses. 

Appellant maintained in his IFP petition, appellate brief, and at oral 

argument, his inability to pay fees/costs. Appellant’s brief suggests he 

wants counsel. Further, the record shows a potential issue implicating the 

legality of Appellant’s sentence now pending before this Court, involving 

merger of sentences for DUI and fleeing/eluding (while DUI). See 

Commonwealth v. Kimmel, 2014 PA Super 186 (Pa.Super. 8/29/14), 

withdrawn, 2014 Pa.Super. LEXIS 3963 (Pa.Super. 10/10/14) (en banc) (per 

curiam). In light of Appellant’s limited income, allegations of indigency, and 

this Court’s pending en banc decision, we remand for reconsideration of 

Appellant’s IFP status, the appointment of counsel in the interests of justice, 

an opportunity to file a Rule 1925(b) statement, and pursue the appeal. 

See Pa.R.Crim.P. 122(A)(3), Lepre, supra. 

 Case remanded with instructions. Panel jurisdiction is retained.