Commonwealth v. Friedland

243 A.3d 740

COMMONWEALTH of Pennsylvania

v.Edward FRIEDLAND, Appellant

Commonwealth of Pennsylvania

v.Edward Friedland, Appellant

No. 330 EDA 2020

No. 331 EDA 2020

Superior Court of Pennsylvania.

Submitted September 21, 2020

Filed December 11, 2020

John Martin Belli, Philadelphia, for appellant.

Lawrence Jonathan Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Tracy Ann Yim, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY KUNSELMAN, J.:

Edward Friedland appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541 - 9546. We affirm.

The pertinent facts and procedural history are as follows: While robbing a grocery store, Friedland shot and injured the storeowner, as well as the storeowner's friend, who died of his injuries. At two separate dockets, Friedland was charged with various crimes, one docket relating to the storeowner, and one relating to the shooting victim. The Commonwealth consolidated the dockets for a two-day, non-jury trial, resulting in Friedland's conviction of multiple charges, including second-degree murder and robbery. The next day, the trial court sentenced Friedland to an aggregate term of life in prison. Following the denial of his post-sentence motions, Friedland filed a timely appeal to this Court. In an unpublished memorandum filed on January 10, 2017, we rejected his challenges to the sufficiency and weight of the evidence supporting his convictions, and affirmed Friedland's judgment of sentence. Commonwealth v. Freidland , 160 A.3d 249 (Pa. Super. 2017). Friedland did not seek further review.

On December 14, 2017, Friedland filed a pro se PCRA petition. In his petition, Friedland specifically requested that counsel not be appointed to represent him in his PCRA proceedings. Accordingly, on May 10, 2018, the PCRA court held a hearing order to determine whether Friedland's waiver of his right to counsel was knowing, intelligent and voluntary. See Commonwealth v. Grazier , 552 Pa. 9, 713 A.2d 81 (1998) ; Pa.R.Crim.P. 121. At the conclusion of the hearing, the Court concluded that Friedland's waiver was knowing, intelligent and voluntary, and therefore, the court permitted him to proceed pro se .

The PCRA court summarized Friedland's subsequent court filings as follows:

Following [his] Grazier hearing in May 2018, [Friedland] requested numerous extensions to file an amended PCRA petition, a supplemental petition, and a response to the Commonwealth's Motion to Dismiss, all of which the [PCRA court] granted. [He] requested another extension on June 7, 2019, to amend his previously submitted petition in order to cure defects, eliminate meritless claims, provide witness certifications, and add new claims. That request was granted, as was another request for more time filed in August 2019. [Friedland] then filed another amended petition and supplemental petition in September 2019. At the direction of the [PCRA court], the Commonwealth responded to all of [Friedland's] numerous claims.

Finally, in November 2019, after considering all of [Friedland's] claims and the Commonwealth's responses thereto, the [PCRA court] issued its [Pa.R.Crim.P.] 907 Notice, rejecting [Friedland's] arguments. Only then did [Friedland], seeking to start the process anew, ask for a lawyer [in response to the PCRA court's Rule 907 Notice]. Accordingly, not until after the [PCRA court] determined that the claims alleged in [Friedland's] petition were without merit, did [he] request that counsel be appointed.

PCRA Court Opinion, 6/9/20, at 5 (paragraph break added).

By order entered December 12, 2019, the PCRA court denied Friedland's "belated request for counsel", id. at 6, and denied his PCRA petition. Friedland filed timely notices of appeal,¹ and the PCRA court appointed him appellate counsel. Both Friedland and the PCRA court have complied with Pa.R.A.P. 1925.

Friedland now raises the following issue:

1. Did the PCRA court err in refusing [Friedland's] request for counsel on a first PCRA petition prior to dismissal of his pro se PCRA where [Friedland] indicated prior to dismissal that he needed the "help of an attorney" and could not, "fulfill his burden" while acting pro se ?

Friedland's Brief at 3.

"Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error." Commonwealth v. Beatty , 207 A.3d 957, 960-61 (Pa. Super. 2019) (citation omitted). "We afford the court's factual findings deference unless there is no support for them in the certified record." Commonwealth v. Greco , 203 A.3d 1120, 1123 (Pa. Super. 2019) (citation omitted).

In support of his claim, Friedland emphasizes that a PCRA petitioner is entitled to counsel when litigating his first PCRA petition. Friedland's Brief at 7-8. Here, however, Friedland was afforded the opportunity to have counsel appointed, but requested to proceed without one; following a full Rule 121 colloquy, he waived this right. See PCRA Court Opinion, 6/9/20, at 4. See also Commonwealth v. Figueroa , 29 A.3d 1177, 1181-82 (Pa. Super. 2011) (remanding for a Grazier colloquy to inform a PCRA petitioner who "vehemently denied that he desires legal counsel" that he was entitled to be represented by counsel and a counseled amended petition when pursuing his first PCRA petition).

As noted by the PCRA court, Friedland is not challenging the adequacy of his Rule 121 waiver. Rather, at issue is whether the PCRA court abused its discretion in denying Friedland's request for the appointment of counsel pursuant to Pa.R.Crim.P. 904. Rule 904 provides, in pertinent part:

(C) Except [for appointment of counsel in death penalty cases], when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief.

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(E) The judge shall appoint counsel to represent a defendant whenever the interests of justice require it.

Pa.R.Crim.P. 904.

"It is well established that a defendant can waive the right of self-representation after asserting it." Commonwealth v. Bryant , 579 Pa. 119, 855 A.2d 726, 737 (2004) (citations omitted). With regard to a request to proceed pro se , this Court has explained:

A defendant's request to proceed pro se must be timely and unequivocal and not made for the purposes of delay. In reviewing the timeliness of the request to proceed pro se , courts generally consider the point in the proceedings that the request is being made. This Court has held that when the request to proceed pro se is asserted after meaningful trial proceedings have begun, it is within the discretion of the trial court [to grant or deny the request].

Commonwealth v. El , 933 A.2d 657, 662-63 (Pa. Super. 2007) (citations omitted), affirmed , 602 Pa. 126, 977 A.2d 1158 (2009).

We believe the same discretion should be afforded to the PCRA court when a defendant untimely requests counsel during PCRA proceedings. To require the appointment of counsel after the PCRA court had conducted a comprehensive Rule 121 colloquy and found no merit to Friedland's issues, would inappropriately provide Friedland a second attempt at post-conviction relief. Instead the PCRA court should be able to consider the timeliness of the request and have the discretion to deny it.

Here, the PCRA court found that it properly exercised its discretion when it denied Friedland's request for counsel:

Whether a defendant who had validly waived his right to counsel in a first PCRA petition may rescind that waiver at some point in the proceedings before the [PCRA court] rejects all of his arguments is not at issue in this appeal. Where, as here, [Friedland] has a change of heart and first requests counsel only after seeing a [Rule] 907 notice, his request for counsel is untimely and may properly be rejected. The purpose of a [Rule] 907 notice is to give a defendant an opportunity to cure technical deficiencies in the PCRA pleadings or submissions and to raise issues as to ineffective assistance of counsel. See Commonwealth v. Rykard , 55 A.3d 1177, 1189 (Pa. Super. 2012) [.] It is not to give defendant an opportunity to start anew, with a second bite at the apple, after being displeased with the results of his efforts during extensive and lengthy litigation.

PCRA Court Opinion, 6/9/20, at 5.

We discern no abuse of discretion.

In arguing that his initial decision to proceed pro se "was not irrevocable," Friedland ignores the timing of his request. El , supra . His reliance upon the United States Supreme Court's decision in Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is inapposite. In Faretta , the High Court vacated the defendant's judgment of sentence after holding that he had a...