J-S42034-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL A. MARTIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 398 WDA 2022

Appeal from the PCRA Order Entered March 15, 2022

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0003982-2013

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

CONCURRING MEMORANDUM BY BOWES, J.: FILED: JUNE 6, 2023

I agree with the Majority that this case must be remanded for the PCRA 

court to address claims of prior PCRA counsel’s ineffectiveness. I write 

separately to highlight an issue of PCRA court error and its ramifications on 

the proceedings following remand.

These post-conviction proceedings began in the proper and customary 

fashion. Upon the pro se filing of Appellant’s first PCRA petition, the PCRA 

court correctly appointed James Robinson, Esquire, as counsel. 

Attorney Robinson sought to withdraw pursuant to Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 

213 (Pa.Super. 1988) (en banc), and the PCRA court issued Pa.R.Crim.P. 907 

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* Retired Senior Judge assigned to the Superior Court.
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notice of its intent to dismiss the petition without a hearing. In opposition, 

Appellant availed himself of the holding of Commonwealth v. Bradley, 261 

A.3d 381 (Pa. 2021), and raised multiple pro se claims of Attorney Robinson’s 

ineffective assistance “at the first opportunity to do so[.]” Id. at 401. In 

particular, Appellant raised the same issues that he advances on appeal. See

Response to Notice of Intent to Dismiss, 7/9/18, at 9-14 (claiming that 

Attorney Robinson was ineffective in failing to pursue or address claims 

concerning Appellant’s mental health records, the available diminished 

capacity defense, the lack of communication of a plea offer, and the waiver 

on direct appeal of the challenge to autopsy photos). Appellant later added a 

claim of ineffective assistance in the failure to call Hope Miller as a witness at 

trial. See Supplemental PCRA Summary, 10/4/19, at 1-5. The PCRA court 

ultimately granted Attorney Robinson’s withdrawal request upon determining 

that none of the issues Appellant had raised in his petition was meritorious or 

warranted a hearing.1 

Thereafter, procedural irregularities ensued. Despite concluding that 

the petition raised no issues to be resolved after a hearing, the PCRA court

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1

In what in hindsight was the first indication that these proceedings were 

straying from the usual path, the PCRA court did not immediately allow 

counsel to withdraw upon determining that Attorney Robinson properly 

concluded that the petition was meritless and there was no point in further 

proceedings. Instead, the PCRA court took Attorney Robinson’s request under 

advisement, and informed Appellant that he could respond to the notice pro 

se or with the assistance of his not-yet-dismissed counsel. See Notice of 

Intent to Dismiss, 3/19/18, at 11-12. 
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also ruled that Appellant was “entitled to present facts that might support his 

position” as to the claims of PCRA counsel’s ineffectiveness. See N.T. Hearing, 

10/16/18, at 8. Therefore, instead of dismissing the petition as indicated in 

its Rule 907 notice, the PCRA court held a hearing on Appellant’s claims of 

ineffective assistance of PCRA counsel, but denied his request for the 

appointment of new counsel, requiring Appellant to proceed pro se.

The PCRA court’s failure to appoint counsel to represent Appellant at the

PCRA hearing on his challenges to the ineffectiveness of PCRA counsel was

legal error. Pursuant to Pa.R.Crim.P. 904(D), the PCRA court must appoint 

counsel to represent an indigent petitioner any time it determines an 

evidentiary hearing is necessary, even where no right to counsel otherwise 

attaches. See, e.g., Commonwealth v. Laboy, 230 A.3d 1134, 1138–39 

(Pa.Super. 2020). The only time a PCRA petitioner should appear pro se at 

an evidentiary hearing is if he has made a knowing and voluntary waiver of 

his right to counsel pursuant to Commonwealth v. Grazier, 713 A.2d 81, 82 

(Pa. 1998) (“When a waiver of the right to counsel is sought at the postconviction and appellate stages, an on-the-record determination should be 

made that the waiver is a knowing, intelligent, and voluntary one.”). 

Furthermore, “[i]f the appointment of counsel is deemed necessary for 

purposes of conducting an evidentiary hearing, then the petitioner requires 

the assistance of counsel throughout the litigation of the issue,” including the 
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appeal process. Commonwealth v. Jackson, 965 A.2d 280, 284 (Pa.Super. 

2009). 

Thus, once the PCRA court determined that Appellant raised claims that 

necessitated a hearing, it was required to appoint counsel to represent 

Appellant at that hearing and thereafter. The PCRA court’s failure to do so 

constituted reversible error that belies present PCRA counsel’s contention that 

this appeal is wholly without merit. See Commonwealth v. Stossel, 17 A.3d 

1286, 1290 (Pa.Super. 2011) (“[W]here an indigent, first-time PCRA 

petitioner was denied his right to counsel—or failed to properly waive that 

right—this Court is required to raise this error sua sponte and remand for the 

PCRA court to correct that mistake.”). In my view, this overlooked issue itself 

provides a basis to justify the Majority’s decision to deny present PCRA 

counsel’s withdrawal request. 

Had this appeal followed a dismissal of Appellant’s petition after he 

proceeded to his hearing pro se, remanding for the appointment of counsel to 

litigate the claims of initial PCRA counsel’s ineffectiveness would be the proper 

disposition. See, e.g., Commonwealth v. Betts, 240 A.3d 616, 624-25

(Pa.Super. 2020). However, in another unusual twist, after the hearing but 

before the PCRA court dismissed the petition, Appellant retained PCRA 

counsel, David J. Shrager, Esquire, who was granted permission to essentially 
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begin the PCRA process anew with an amended PCRA petition.

2

 

Attorney Shrager’s petition both added new claims and re-asserted one of the 

claims Attorney Robinson opined was without merit, and the PCRA court held 

a new hearing on the new petition. As such, Appellant has already, to some 

extent, seen his right to the assistance of counsel in prosecuting his first PCRA 

petition vindicated. Consequently, I see no need to remand to restart the 

proceedings at square one. Cf. Commonwealth v. Bates, 272 A.3d 984, 

989 (Pa.Super. 2022) (requiring second PCRA petition to be considered a 

timely first petition where the petitioner was denied counsel in connection with 

his actual timely first petition).

Rather, I agree with the Majority that, on remand, Appellant should be 

afforded the right to pursue, with the assistance of appointed counsel, the

Bradley claims that he raised before Attorney Shrager entered an appearance 

and in effect re-initiated these PCRA proceedings. I also agree with my 

esteemed colleagues that Appellant must be afforded the opportunity to 

litigate those claims free from any ill-effects or unfavorable evidence or rulings 

occasioned by the PCRA court’s error in compelling Appellant to present those 

claims pro se. See Majority Memorandum at 14-15 (indicating that Appellant 

has the right upon remand to relitigate with the assistance of counsel claims 

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2 For clarity’s sake, I note that Attorney Shrager was permitted to withdraw 

after the petition was denied, and present PCRA counsel, Adam R. Gorzelsky, 

Esquire, was appointed to represent Appellant in this appeal.
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addressed in the pro se hearing). Under the unusual facts of this case, 

consideration of Appellant’s Bradley claims on a clean slate, with the 

assistance of counsel, whether that be present counsel or a fourth appointed 

attorney, is the proper remedy for the PCRA court’s prior error in denying 

Appellant counsel. 

Judges Olson and Colins join this Concurring Memorandum.