J-S45020-20
2020 PA Super 282
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD FRIEDLAND :
:
Appellant : No. 330 EDA 2020
Appeal from the PCRA Order Entered December 12, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010658-2012,
CP-51-CR-0010659-2012.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD FRIEDLAND :
:
Appellant : No. 331 EDA 2020
Appeal from the PCRA Order Entered December 12, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0010658-2012,
CP-51-CR-0010659-2012.
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
OPINION BY KUNSELMAN, J.: FILED DECEMBER 11, 2020
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.
J-S45020-20
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 In an unpublished memorandum filed on January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. Friedland, 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, 713 A.2d 81 (Pa. 1998); Pa.R.Crim.P. 121. At
the conclusion of the hearing, the Court concluded that Friedland’s waiver was
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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
____________________________________________
1 In accordance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),
Friedland has filed a separate notice of appeal at each lower court docket
number.
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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. Freedland’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
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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.
…
(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, 855 A.2d 726,
737 (Pa. 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].
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Commonwealth v. El, 933 A.2d 657, 662-63 (Pa. Super. 2007) (citations
omitted), affirmed,
977 A.2d 1158 (Pa. 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.
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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 (1975), is inapposite. In Faretta, the High Court
vacated the defendant’s judgment of sentence after holding that he had a
constitutional right to proceed without counsel at his state criminal trial when
he voluntarily and intelligently elected to do so. Faretta,
422 U.S. 835-36.
The Court further concluded that the state cannot force a lawyer upon him
when he insisted that he wanted to conduct his own defense. Id.
Friedland cites the following sentence from Faretta to support his claim
that the High Court implicitly ruled that a defendant can “rescind” his request
to proceed pro se: “Of course, a State may—even over objection by the
accused—appoint a ‘standby counsel’ to aid the accused if and when the
accused requests help, and to be available to represent the accused in the
event that termination of defendant’s self-representation is necessary.”
Friedland’s Brief at 9 (citing Faretta 422 U.S. at 834, n.46).
Unlike the present case, Faretta dealt with the representation status of
a defendant prior to his trial and conviction. Moreover, the footnote where
the sentence cited by Friedland appears was discussing the High Court’s
acknowledgment that “many criminal defendants representing themselves
may use the courtroom for deliberate disruption of their trials.” Faretta, 422
U.S. at 834, n.46. In this case, Friedland had litigated his pro se PCRA
petition, and only then sought counsel once the PCRA court issued notice of
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its intent to dismiss the petition without a hearing. When viewed in this
context, Faretta in no way supports Friedland’s argument.2
Finally, Friedland argues that the PCRA court “seems to have
acknowledged” that it was in “the interest of justice” to assist him in the
litigation of his PCRA petition, because the court appointed counsel to
represent him in this appeal. Friedland’s Brief at 9-10. We cannot agree. It
is well settled that a PCRA petitioner has a right to representation of counsel
for purposes of litigating a first PCRA petition through the entire appellate
process. Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super.
2009) (en banc). Because Friedland clearly requested counsel to aid him in
challenging the denial of his PCRA petition, the PCRA court correctly appointed
appellate counsel in this case.
In sum, because the PCRA court did not abuse its discretion in refusing
Friedland’s request for counsel to assist him in re-litigating this matter before
the PCRA court, we affirm its order denying him post-conviction relief.
Order affirmed.
____________________________________________
2 Friedland also cites Robinson v. Ignacio, 360 F.3d 1044, 1058 (9th Cir.
2004), for the proposition a “strong presumption exists that a defendant’s
post-trial request for assistance [of counsel] should not be refused.”
Robinson did not involve the same procedural posture as this case. Rather,
in that case, the defendant waived his right to counsel at trial, but requested
counsel to represent him at sentencing.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2020
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