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

Appellee

v. CURTIS LEE Appellant : : : : : : : : : 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 (“P CRA”). 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 subsequentl y 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

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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. Appel lant 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 counse l, 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 tria l 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 menta l 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 t ake 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, a nd Appellant proceeded with the benchJ

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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 req uest. 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 parti cipate 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 committi ng Appellant under the Mental Health Procedures Act 2 for a period of 30 days. The court signed a second involuntary commitment order on December 21, 2017, and a third

_________________ __________ ______ ____ _______ 2 50 P.S. §§ 7101 et seq

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involuntary commitment order on May 31, 2018. Appellant subsequently regained compete ncy, 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 m otion 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 t he possibility that Appellant was unable to knowingly, intel ligently, 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
is sues. Appellant insisted counsel had no reasonable strategic basis for failing to bring Appel lant’s mental health issues to the court’s attention , and counsel’s ineffectiveness prejudiced Appellant. Appellant attached numerous exhibits to his PCRA petiti on 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 incompetentJ

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at the time he waived his ri ght to a jury trial. The record indicates that the court held a status conference on October 29, 2019. 3 O n 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, Attorne y 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

. B ecause new counsel had not entered an appearance on Appellant’s behalf , At torney Major believed she was still duty

- bound to represent Appellant.

_________________ __________ ______ ____ _______ 3 This proceeding was not transcribed

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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 ineffe ctiveness must be raised in serial PCRA petition or in response to Rule 907 notice before PCRA court).J

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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, a long 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 allegatio ns 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 deniedJ

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- his right to counsel

— or failed to properly waive that right

— this Court is requir ed 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 well

recognized 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. A lbrecht , 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 f ormal 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

- revi ew 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 ineffectivenessJ

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- cannot ordinarily be raised in state post

- conviction proceedings[.]” Commonwealth v. Ryka rd , 55 A.3d 1177, 1188 (Pa.Super. 2012) (emphasis added). However, our Supreme Court also concomitantly requires counseled PCRA petitioners to ra ise allegations of PCRA counsel’ s ineffectiveness in response to a Rule 907 notice of intent to dismiss, or ri sk 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 ineffectivenes s 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. T his Court reasoned :J

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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. Se e 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 c ounsel 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 prec lude s 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 impos sible 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 rightJ

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- to relief without the assistance of counsel. Requiring Appellant to make substantive pro se argument s 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 con flict could undermine appellant’ s chance of su ccess ”). Such a concl usion would s ubvert 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 rig ht to appointment [of] counsel has been effectively denied”). Betts, supra at *6

- *7 (internal footnote omitted). Instantly, a lthough 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 assis tance from counsel at this stage of the PCRA proceedings. See id. Notwithstanding Appellant’s claims of PCRA counsel’s ineffectiveness and allegations ofJ

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indigency, the PCRA court did not decide whether Appellant was indigent and entitled to the appointm ent of counsel, see Pa.R.Crim.P. 904(C), (F)(2) , appoint counsel in the interests of justice eve n 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 cir cumstances, 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 s e 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 Commo nwealth shall have a reasonable opportunity to respond. Thereafter, the PCRA cou rt shall proceed as it deems appropriate

. See id. (issuing similar instructions upon remand). Order vacated. Case remanded with instructions. Jurisdiction is relinquishe d.

_________________ __________ ______ ____ _______ 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.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/06/2020