# Com. v. Brown, N.

> Superior Court of Pennsylvania · July 29, 2016

URL: https://www.frixlaw.com/law-library/cases/4020177

## Case

- **Court:** Superior Court of Pennsylvania
- **Decided:** July 29, 2016
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

J-S45034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

NATHANIEL BROWN,

Appellant No. 1897 WDA 2014

Appeal from the PCRA Order October 2, 2014
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0013099-2006

BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 29, 2016

Appellant, Nathaniel Brown, appeals from the order of October 2,

2014, which dismissed, following a hearing, his first petition brought under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. For the

reasons discussed below, we remand this case with instructions.

Our review of the record demonstrates that, on March 11, 2015,

Appellant filed a pro se petition seeking leave to proceed pro se on appeal.

It appears that the PCRA court did not forward the petition to PCRA counsel

and did not take any action on the petition.

An indigent, first-time PCRA petitioner is entitled to counsel throughout

PCRA proceedings, including any appeal to this Court. See Commonwealth
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
J-S45034-16

v. White, 871 A.2d 1291, 129-23 (Pa. Super. 2005). If a PCRA petitioner

wishes to proceed without the assistance of counsel, the PCRA court must

conduct an on-the-record colloquy, see Commonwealth v. Grazier, 713

A.2d 81 (Pa. 1998), to determine if the petitioner’s waiver is knowing,

intelligent and voluntary. When, as here, it appears that an indigent, first-

time PCRA petitioner fails to make a proper waiver of his right to counsel,

this Court can raise the error sua sponte and remand the case to the PCRA

court to determine if Appellant is knowingly, intelligently and voluntarily

waiving his right to counsel. See Commonwealth v. Stossel, 17 A.3d

1286, 1290 (Pa. Super. 2011).

Appellant is indigent and the instant PCRA petition is his first. (See

Order, 10/22/14, at unnumbered page 1). Thus, he is entitled to appointed

counsel throughout the proceedings. While Appellant did file a petition

seeking leave to proceed pro se on appeal, there was apparently no Grazier

hearing to determine whether Appellant knowingly, intelligently and

voluntarily waived his right to counsel on this appeal.

Accordingly, we remand this case to the PCRA court. If, the PCRA

court determines on remand that Appellant wishes to proceed pro se on this

appeal, the PCRA court shall promptly conduct a Grazier hearing. If

Appellant knowingly, intelligently and voluntarily waives his right to

appellate counsel pursuant to Grazier, the PCRA court shall ensure that a

transcript of the Grazier hearing is made a part of the certified record. If

-2-
J-S45034-16

Appellant validly chooses to proceed pro se, Appellant shall file a brief with

this Court within thirty days of the trial court’s order; the Commonwealth

may file a responsive brief within thirty days of when Appellant files a brief.

Regardless of the disposition of the Grazier hearing, the PCRA court shall

ensure that the certified record is thereafter returned to the Prothonotary of

this Court sixty days after the date of this memorandum.

Further, the Court of Common Pleas of Allegheny County is hereby

ordered to transcribe and transmit to the Superior Court of Pennsylvania the

notes of testimony and exhibits from the September 25, 2014 PCRA hearing.

The Court of Common Pleas shall comply with this order within sixty (60)

days from the date on which it is entered.

Case remanded with instructions. Panel jurisdiction retained.

-3-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4020177. Public record. Not legal advice.