J-S40026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

CURTIS LEE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 297 EDA 2020

Appeal from the PCRA Order Entered December 17, 2019

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0006869-2016

BEFORE: SHOGAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED OCTOBER 6, 2020

Appellant, Curtis Lee, appeals from the order entered in the Philadelphia 

County Court of Common Pleas, which dismissed his first petition brought 

pursuant to the Post Conviction Relief Act (“PCRA”).1 We vacate and remand 

for further proceedings. 

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

June 2, 2016, police arrested Appellant for his role as the “look-out” in a drug 

transaction. The Commonwealth subsequently charged Appellant with 

possession with intent to deliver (“PWID”), conspiracy, and possession of a 

controlled substance. On November 14, 2016, Appellant filed a pro se motion 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. 
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to remove defense counsel, Attorney Daniel Conner, and to appoint new 

counsel. Appellant alleged he is diagnosed as a paranoid schizophrenic and 

suffers from severe psychosis. Appellant claimed he was reported as a missing 

person from his treatment facility in April 2016, after Appellant had wandered 

off and did not return. Appellant maintained that Attorney Conner failed to 

investigate Appellant’s mental illness, subpoena his mental health records, or 

visit with Appellant to discuss a defense strategy, among other things. 

On February 13, 2017, Appellant retained private counsel, Attorney 

Douglas Dolfman, who replaced Attorney Conner. Represented by Attorney 

Dolfman, Appellant proceeded to a bench trial on June 8, 2017. Prior to trial, 

Appellant executed a written colloquy confirming that his waiver of his right 

to a jury trial was knowing, intelligent, and voluntary. The court also 

conducted an oral colloquy to confirm Appellant’s waiver was valid. 

During the oral colloquy, the court asked Appellant if he had ever been 

treated in the past or diagnosed with any kind of mental health issues. 

Appellant responded: “I mean, just depression and some other stuff.” (N.T. 

Bench Trial, 6/8/17, at 5). The court also asked Appellant if he was taking 

any medication for his mental health issues. Appellant responded: “Yeah, I 

used to take medication. Yes, Sir.” (Id. at 5-6). The court asked Appellant 

if he was taking any medication today, to which Appellant answered “[n]o.” 

(Id.) Following the colloquy, the court accepted Appellant’s waiver as 

knowing, intelligent, and voluntary, and Appellant proceeded with the bench 
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trial. At the conclusion of trial, the court convicted Appellant of all charges. 

Defense counsel asked the court to defer sentencing pending a pre-sentence 

investigation (“PSI”) report, and the court granted that request. 

On July 11, 2017, a PSI took place. During the interview, Appellant 

reported his history of mental illness. Appellant had difficulty focusing and 

asked if the interviewer was in the Central Intelligence Agency (“CIA”), 

because Appellant claimed the CIA wanted to hurt him. The interviewer 

reported that “[Appellant’s] behavior appeared genuine and not an effort to 

avoid complying with the presentence interview.” (See Exhibit K attached to 

PCRA Petition, filed 3/25/19, at preface). 

On August 9, 2017, Appellant filed a motion to remove Attorney Dolfman

as counsel. Appellant alleged that counsel failed to inform the court about 

Appellant’s mental illness before trial. Appellant claimed he was unable to 

follow the proceedings or participate in his defense due to his mental health 

issues.

The court ordered Appellant to undergo a mental health evaluation on 

September 8, 2017. Following the mental health evaluation, the court entered 

an order on November 17, 2017, involuntarily committing Appellant under the 

Mental Health Procedures Act2for a period of 30 days. The court signed a 

second involuntary commitment order on December 21, 2017, and a third 

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2 50 P.S. §§ 7101 et seq.
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involuntary commitment order on May 31, 2018. 

Appellant subsequently regained competency, retained new private 

counsel, Attorney Rania Major, and proceeded to sentencing on July 20, 2018. 

The court sentenced Appellant to an aggregate term of two (2) to five (5) 

years’ imprisonment, plus five (5) years’ probation. Appellant timely filed a

counseled post-sentence motion on July 27, 2018. The court denied relief on 

August 6, 2018. Appellant did not file a direct appeal.

On March 25, 2019, Appellant filed the current timely, counseled PCRA 

petition. Appellant alleged, inter alia, Attorney Dolfman was ineffective for 

failing to correct the record concerning Appellant’s answers during the jury 

waiver colloquy. Appellant claimed trial counsel knew of his significant mental 

health issues at the time of trial, but trial counsel did not raise the possibility 

that Appellant was unable to knowingly, intelligently, and voluntarily waive his 

rights due to Appellant’s incompetency. Appellant maintained that the PSI 

report, filed shortly after trial, confirmed Appellant’s significant mental health 

issues. Appellant insisted counsel had no reasonable strategic basis for failing 

to bring Appellant’s mental health issues to the court’s attention, and counsel’s 

ineffectiveness prejudiced Appellant. Appellant attached numerous exhibits 

to his PCRA petition including, but not limited to, the PSI report and his mental 

health records.

The Commonwealth filed a motion to dismiss on July 22, 2019, claiming 

Appellant failed to proffer an expert opinion that Appellant was incompetent 
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at the time he waived his right to a jury trial. 

The record indicates that the court held a status conference on October 

29, 2019.3 On November 4, 2019, the court issued notice of its intent to 

dismiss the petition without a hearing per Pa.R.Crim.P. 907. 

On November 21, 2019, Appellant filed a pro se response to Rule 907 

notice.4 Appellant alleged that PCRA counsel (Attorney Major) was ineffective 

for failing to subpoena trial counsel (Attorney Dolfman) for the October 29, 

2019 proceeding. Appellant claimed Attorney Major had informed him that 

Attorney Dolfman was ill and unable to attend the proceeding. Appellant 

disputed the veracity of that claim. Appellant also indicated in the proof of 

service attached to his response that he was indigent.

On November 25, 2019, Attorney Major filed an emergency motion for 

extension of time to respond to Rule 907 notice. Counsel explained that 

Appellant told her on November 15, 2019, that he wanted new counsel. 

Because new counsel had not entered an appearance on Appellant’s behalf, 

Attorney Major believed she was still duty-bound to represent Appellant. 

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3 This proceeding was not transcribed. 

4

In general, criminal defendants are not entitled to hybrid representation. 

See Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032 (2011). 

Nevertheless, as discussed in greater detail later in this memorandum, 

Appellant’s pro se allegations of PCRA counsel’s ineffectiveness were proper 

under these circumstances. See Commonwealth v. Ford, 44 A.3d 1190, 

1200 (Pa.Super. 2012) (explaining that issues of PCRA counsel’s 

ineffectiveness must be raised in serial PCRA petition or in response to Rule 

907 notice before PCRA court). 
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Attorney Major claimed she had a family medical emergency that required her 

immediate attention, and she asked the court for an extension until December 

9, 2019, to respond to the Rule 907 notice. 

The court did not rule on Attorney Major’s motion, and Attorney Major 

did not submit a response to Rule 907 notice. On December 18, 2019, the 

court denied PCRA relief. On January 6, 2020, Appellant timely filed a pro se

notice of appeal, along with a request for in forma pauperis status. The court 

did not order, and Appellant did not file, a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 30, 2020, 

the PCRA court permitted Attorney Major to withdraw and appointed new 

counsel, Attorney James Lloyd, III, to represent Appellant on appeal.

Appellant raises one issue for our review:

Did the PCRA [c]ourt err and/or abuse its discretion when it 

denied and dismissed, without a hearing, [A]ppellant’s

petition under the PCRA, where [Appellant] suffered from 

mental illness prior to a non-jury trial and his counsel failed 

to advise the trial court of the seriousness and scope of 

[Appellant]’s documented and diagnosed mental illness 

resulting in waiver of [Appellant]’s right to a jury trial which 

was not knowing, intelligent, and voluntary?

(Appellant’s Brief at 4).

Before reviewing Appellant’s issue on appeal concerning trial counsel’s 

alleged ineffectiveness, we must first address Appellant’s allegations of PCRA 

counsel’s ineffectiveness raised in response to the Rule 907 notice. This Court 

has recently explained:

“[W]here an indigent, first-time PCRA petitioner was denied 
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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.” 

Commonwealth v. Stossel, 17 A.3d 1286, 1290 

(Pa.Super. 2011).

As this is Appellant’s first PCRA petition, he enjoys a wellrecognized right to legal representation during this initial 

collateral review of his judgment of sentence. See 

Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989) 

(“[I]n this Commonwealth one who is indigent is entitled to 

the appointment of counsel to assist with an initial collateral 

attack after judgment of sentence”). In this context, “the 

right to counsel conferred on initial PCRA review means ‘an 

enforceable right’ to the effective assistance of counsel.” 

See Commonwealth v. Holmes, 79 A.3d 562, 583 (Pa. 

2013) (quoting Commonwealth v. Albrecht, 720 A.2d 

693, 699-700 (Pa. 1998)).

While the existence of this right is well-established, the 

procedure for its enforcement, i.e., raising allegations of 

PCRA counsel’s ineffectiveness, remains ill-defined under 

Pennsylvania law:

[T]here is no formal mechanism in the PCRA for a 

second round of collateral attack focusing upon the 

performance of PCRA counsel, much less is there a 

formal mechanism designed to specifically capture 

claims of previous counsel’s ineffectiveness defaulted 

by initial-review PCRA counsel. Frankly, this Court 

has struggled with the question of how to enforce the 

“enforceable” right to effective PCRA counsel within 

the strictures of the PCRA[.] The question of whether 

and how to vindicate the right to effective PCRA 

counsel has been discussed at length in majority 

opinions and in responsive opinions .... But, the 

Justices have not been of one mind respecting how to 

resolve the issue, and no definitive resolution has 

emerged.

Holmes, supra at 583-84. Stated more succinctly, “since 

petitioners are not authorized to pursue hybrid 

representation and counsel cannot allege [their] own 

ineffectiveness, claims of PCRA counsel ineffectiveness 
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cannot ordinarily be raised in state post-conviction 

proceedings[.]” Commonwealth v. Rykard, 55 A.3d 

1177, 1188 (Pa.Super. 2012) (emphasis added).

However, our Supreme Court also concomitantly requires 

counseled PCRA petitioners to raise allegations of PCRA 

counsel’s ineffectiveness in response to a Rule 907 notice of 

intent to dismiss, or risk waiver. See Commonwealth v. 

Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009). 

* * *

Subsequent interpretation of Pitts by both the Supreme 

Court and this Court have reaffirmed this aspect of the 

holding. See Commonwealth v. Robinson, 139 A.3d 178, 

184 n.8 (Pa. 2016); Commonwealth v. Henkel, 90 A.3d 

16, 25 (Pa.Super. 2014) (en banc) (“[T]he Pitts majority 

mandated that a petitioner raise any allegations of PCRA 

counsel ineffectiveness in response to the PCRA court’s 

notice of dismissal”).

Commonwealth v. Betts, 2020 Pa. Super 225, ___ A.3d ___, 2020 WL 

5524288, at *4-*5 (Pa.Super. filed Sept. 15, 2020) (some internal citations 

omitted).

In Betts, the appellant had complied with Pitts by asserting PCRA 

counsel’s ineffectiveness in response to the PCRA court’s issuance of Rule 907 

notice, and before entry of a final PCRA order. Id. at *5. Nevertheless, the 

PCRA court did not consider the allegations of PCRA counsel’s ineffectiveness 

prior to dismissing his PCRA petition, so the appellant’s “concerns were not 

reviewed or investigated by the PCRA court in a meaningful way.” Id. 

Consequently, this Court held that the appellant “never received the 

assistance of counsel in arguing the merits of these ineffectiveness claims to 

the PCRA court.” Id. at *6. This Court reasoned:
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Appellant’s rule-based right to effective counsel extends 

throughout the entirety of his first PCRA proceeding. See 

Holmes, supra at 583; Henkel, supra at 22-23 (citing 

Pa.R.Crim.P. 904(F)(2)). Necessarily, Appellant had a right 

to effective counsel when he alleged [PCRA counsel’s] 

ineffectiveness in response to the PCRA court’s Rule 907 

notice. Id. However, as a matter of Pennsylvania law, he 

could not rely upon [PCRA] counsel to assist him in this 

specific context. See Commonwealth v. Spotz, 18 A.3d 

244, 329 n.52 (Pa. 2011) (“[C]ounsel cannot argue his or 

her own ineffectiveness”); see also, e.g., Commonwealth 

v. Ellis, 626 A.2d 1137, 1138-39 (Pa. 1993) (“[U]nder no 

other circumstances are counsel and client permitted to 

present opposing arguments”).

In this specific context, Appellant’s timely allegations of 

ineffectiveness created a “substantial” and “irreconcilable” 

conflict in his relationship with [PCRA counsel]. See

Pa.R.Crim.P. 122(C) (“A motion for change of counsel by a 

defendant for whom counsel has been appointed shall not 

be granted except for substantial reasons”); [Jette, supra 

at 1041 n.10] (“To satisfy this standard, a defendant must 

demonstrate he has an irreconcilable difference with counsel 

that precludes counsel from representing him”). Our case 

law is replete with instances where allegations of 

ineffectiveness have necessitated the appointment of 

substitute counsel in the post-collateral context. See, e.g., 

Commonwealth v. Fox, 383 A.2d 199, 200 (Pa. 1978) 

(“[W]e cannot assume that appellant’s [post-conviction]

counsel adequately advised appellant of his own 

inadequacies ....”) (citing Commonwealth v. Sherard, 

384 A.2d 234, 234 (Pa. 1977) (same)).

Instantly, [PCRA counsel] was faced with the impossible 

choices of: (1) taking no action, or rejecting Appellant’s 

assertions of ineffectiveness, thereby narrowing Appellant’s 

available claims for relief and opposing his client’s interests; 

or (2) confirming Appellant’s assertions and assisting 

Appellant in pursuing them while he still represented 

Appellant. Either choice would be objectionable under 

Pennsylvania law. Accord Spotz, supra at 329 n.52; Ellis, 

supra at 1138-39. And while Appellant had an obligation 

to raise these claims, we do not believe that Pitts requires 

him to shoulder the heavy burden of establishing his right 
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to relief without the assistance of counsel. Requiring 

Appellant to make substantive pro se arguments would 

undermine his efforts to obtain collateral relief. See, e.g., 

[Jette, supra at 1040] (“[P]ermitting the pro se brief may 

involve a conflict between lawyer and client, and this conflict 

could undermine appellant’s chance of success”). Such a 

conclusion would subvert the purpose of Appellant’s 

entitlement to the effective assistance of counsel.

In sum, we believe that Appellant is entitled to remand for 

the appointment of substitute PCRA counsel to prosecute 

these abeyant claims of ineffectiveness. Our Supreme Court 

has opined that remand and appointment of new PCRA 

counsel is appropriate in such circumstances:

An indigent petitioner has the right to appointment of 

counsel to assist in prosecuting a first PCRA petition. 

Where that right has been effectively denied by the 

action of court or counsel, the petitioner is entitled to 

remand to the PCRA court for appointment of counsel 

to prosecute the PCRA petition. The remand serves 

to give the petitioner the benefit of competent counsel 

at each stage of post-conviction review.

Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa. 

1999); see also Commonwealth v. Cox, 204 A.3d 371, 

390 (Pa. 2019) (affirming Kenney for the proposition that 

“remand for appointment of counsel is appropriate remedy 

when the right to appointment [of] counsel has been 

effectively denied”).

Betts, supra at *6-*7 (internal footnote omitted). 

Instantly, although the record indicates that Appellant had the financial 

means to retain private counsel earlier in these proceedings, the record also 

suggests that Appellant was indigent at the time he responded pro se to the 

court’s Rule 907 notice. Thus, Appellant was entitled to meaningful assistance 

from counsel at this stage of the PCRA proceedings. See id. Notwithstanding 

Appellant’s claims of PCRA counsel’s ineffectiveness and allegations of 
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indigency, the PCRA court did not decide whether Appellant was indigent and 

entitled to the appointment of counsel, see Pa.R.Crim.P. 904(C), (F)(2), 

appoint counsel in the interests of justice even if Appellant was not indigent, 

see Pa.R.Crim.P. 904(E), or otherwise address Appellant’s claims of PCRA 

counsel’s ineffectiveness. 

Under these circumstances, the best resolution of this case is to vacate 

the order denying PCRA relief and remand for further proceedings. See 

Kenney, supra; Betts, supra. On remand, court-appointed appellate 

counsel (Attorney Lloyd) shall: (1) review Appellant’s pro se allegations of 

PCRA counsel’s ineffectiveness;5 (2) file supplemental briefing limited to 

discussing the merits of those claims within a reasonable time frame; and (3) 

continue to represent Appellant for the duration of these PCRA proceedings. 

The Commonwealth shall have a reasonable opportunity to respond. 

Thereafter, the PCRA court shall proceed as it deems appropriate. See id.

(issuing similar instructions upon remand). 

Order vacated. Case remanded with instructions. Jurisdiction is 

relinquished. 

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5 As this Court acknowledged in Betts, “Appellant’s assertions of [PCRA 

counsel’s] ineffectiveness may ultimately prove meritless. Our holding is 

concerned only with ensuring those claims are given proper consideration. 

Due to the nature of our holding, we express no opinion on the arguable merit 

of Appellant’s assertions.” Betts, supra at *7 n.13. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/06/2020