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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DAVID CARLTON PALMER, : No. 1607 EDA 2019

:

 Appellant :

Appeal from the Order Entered May 8, 2019,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0001931-2008

BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 21, 2020

David Carlton Palmer appeals pro se from the trial court’s May 8, 2019 

order denying his pro se motion to compel discovery. For the reasons that 

follow, we vacate the trial court’s order and remand for the appointment of 

counsel and further proceedings pursuant to the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

The relevant facts and procedural history of this case, as gleaned from 

the certified record, are as follows: On March 3, 2009, appellant was found 

guilty of first-degree murder and related offenses in connection with the 

June 6, 2007 shooting death of Jermaine Jackson in Chester, Pennsylvania. 

That same day, the trial court sentenced appellant to an aggregate term of 

life imprisonment without the possibility of parole. A panel of this court 

affirmed appellant’s judgment of sentence on May 26, 2010, and our supreme 
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court denied allocator on November 17, 2010. See Commonwealth v. 

Palmer, 4 A.3d 205 (Pa.Super. 2010) (unpublished memorandum), appeal 

denied, 13 A.3d 477 (Pa. 2010). Appellant did not initially file a PCRA petition 

in this matter. Thereafter, on May 6, 2019, appellant filed the instant pro se

motion to compel discovery pursuant to Pennsylvania Rule of Criminal 

Procedure 573(a). The trial court denied appellant’s motion on May 8, 2019. 

This timely appeal followed.1

“It is [] well-settled that the PCRA provides the sole means for obtaining 

collateral review, and that any petition filed after the judgment of sentence 

becomes final will be treated as a PCRA petition.” Commonwealth v. 

Fowler, 930 A.2d 586, 591 (Pa.Super. 2007) (citations omitted), appeal

denied, 944 A.2d 756 (Pa. 2008). Here, appellant’s judgment of sentence 

became final on February 17, 2011, 90 days after our supreme court denied 

allowance of appeal and the deadline for filing a petition for writ of certiorari

with the United States Supreme Court expired. See 42 Pa.C.S.A. 

§ 9545(b)(3) (stating, “a judgment becomes final at the conclusion of direct 

review, including discretionary review in the Supreme Court of the United 

States and the Supreme Court of Pennsylvania, or at the expiration of the time 

for seeking the review”). Accordingly, we treat appellant’s May 6, 2019 

pro se motion to compel discovery as a PCRA petition. See, e.g.,

 

1 The trial court did not order appellant to file a concise statement of errors 

complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
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Commonwealth v. Hoyer, A.3d , 2018 WL 914971 (Pa.Super. 

February 16, 2018) (unpublished memorandum) (treating petitioner’s 

post-conviction motion to compel discovery as a PCRA petition); 

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.Super. 2011) (treating 

petitioner’s post-conviction motion to correct illegal sentence as a PCRA 

petition), appeal denied, 47 A.3d 845 (Pa. 2012).

Proper appellate review of a PCRA court’s dismissal of a PCRA petition 

is limited to the examination of “whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants 

great deference to the findings of the PCRA court, and we will not disturb those 

findings merely because the record could support a contrary holding.” 

Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002) (citation 

omitted). 

Here, the crux of appellant’s claim, as gleaned from his brief and 

“rebuttal brief,” is that the trial court erred in failing to grant his motion to 

compel discovery so that he may pursue relief through a PCRA petition. (See

appellant’s brief at 6; appellant’s rebuttal brief at unnumbered 1.) Appellant 

also takes issue with the fact that the trial court purportedly failed to file an 

opinion contemporaneously with its May 8, 2019 order denying his motion to 

compel discovery. (Appellant’s brief at 7.) 
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Prior to consideration of the merits of appellant’s arguments, we note 

that controlling case law dictates that appellant must be afforded the 

assistance of counsel to pursue his first request for PCRA relief in this matter. 

We explained in Commonwealth v. Wiley, 966 A.2d 1153 (Pa.Super. 2009), 

an appellant “is entitled to counsel for his first PCRA petition, regardless of the 

merits of his claim.” Id. at 1159 (citation omitted). This holds true even 

where the petition appears untimely on its face, as is the case here.2 See 

Commonwealth v. Smith, 818 A.2d 494, 501 (Pa. 2003) (holding that, “an 

indigent first-time PCRA petitioner is entitled to the assistance of counsel, 

whether or not the PCRA court ultimately concludes that the PCRA petition is 

untimely”). Rather, in such cases, counsel is appointed principally to 

determine whether the petition is indeed untimely, and if so, whether an 

exception to the timeliness requirements set forth in Section 9545(b)(1)

applies. Id.

Instantly, the record establishes that appellant was not afforded the 

assistance of counsel in pursuing what amounts to his first PCRA petition in 

this matter, contrary to the law of this Commonwealth. Accordingly, we 

vacate the trial court’s May 8, 2019 order and remand for the appointment of 

 

2 See 42 Pa.C.S.A. § 9545(b)(1) (indicating that all PCRA petitions must be 

filed within one year of when a defendant’s judgment of sentence becomes 

final, unless appellant pleads and proves that one of the following three 

statutory exceptions to the one-year jurisdictional time-bar applies). 
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counsel and further proceedings under the PCRA consistent with this 

memorandum.3

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

JosephD.Seletyn,Esq.

Prothonotary

Date: 04/21/2020

 

3

In reaching this conclusion, we recognize that the docket indicates that

appellant had a separate appeal pending at No. 1936 EDA 2019, involving a

judgment of sentence imposed following his negotiated guilty plea on 

February 3, 2011 (CP-23-CR-0000538-2010). Appellant filed an untimely 

PCRA petition with respect to that matter on August 13, 2019, also without 

the benefit of counsel, which the PCRA court dismissed without a hearing. 

Said appeal was quashed as untimely by per curiam order of this court on 

February 19, 2020.