J-S08044-24
2024 PA Super 56
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN WILLIAM WILLIAMS :
:
Appellant : No. 853 MDA 2023
Appeal from the PCRA Order Entered May 16, 2023
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0003640-2017
BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: MARCH 25, 2024
Appellant, John William Williams, appeals from the order entered in the
Court of Common Pleas of Cumberland County dismissing his first petition
under the Post Conviction Relief Act (“PCRA”)1 after we had vacated the PCRA
court’s prior order and remanded with instructions directing it to either appoint
counsel or conduct a proper Grazier2 colloquy before permitting him to
proceed pro se. He contends the PCRA court erred when, after it completed
the colloquy, it forwent a new evidentiary hearing in favor of relying on the
record of his pro se testimony offered at the pre-remand evidentiary hearing.
After careful consideration, we affirm.
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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This Court previously has set forth the relevant procedural history as
follows:
By way of background, a jury convicted Appellant of kidnapping,
robbery, and related offenses in 2019. On June 18, 2019, the trial
court sentenced Appellant to an aggregate term of fourteen to
twenty-eight years’ incarceration. Although Appellant filed a pro
se notice of appeal, he subsequently filed an application to
discontinue his direct appeal, which this Court granted on
February 7, 2020. See Order, 1184 MDA 2019, 2/7/20.
On September 22, 2021, Appellant filed [a] pro se PCRA petition,
his first. In the petition, Appellant claimed, among other issues,
that the trial court, the Commonwealth, and the Department of
Corrections violated his due process rights by interfering with his
direct appeal. Pro Se PCRA Pet., 9/22/21, at 4-12. Appellant also
claimed that his petition was timely under the government
inference and newly discovered facts exceptions to the PCRA's
one-year time bar under 42 Pa.C.S.[A.] § 9545(b)(1)(i), (ii). Id.
at 4, 12, 21-23. Appellant also requested that Attorney Jividen be
reappointed as his standby counsel for the PCRA proceedings. Id.
at 21.
The PCRA court appointed William Braught, Esq. (“PCRA counsel”)
to represent Appellant. PCRA counsel subsequently filed a motion
to withdraw as counsel, and Appellant filed a motion to proceed
pro se captioned “[Appellant's] motion for leave to proceed selfrepresented in post-conviction proceedings.” On November 4,
2021, the PCRA court filed an order that granted Appellant's
motion to proceed pro se, allowed PCRA counsel to withdraw, and
appointed Attorney Jividen as standby counsel. Appellant filed a
motion requesting that the entire Court of Common Pleas of
Cumberland County recuse itself on November 19, 2021.
The PCRA court held a hearing on December 21, 2021, at which
Appellant testified. N.T. PCRA Hr'g, 12/21/21, at 5-22. On January
19, 2022, the PCRA court denied Appellant's PCRA petition.
Appellant filed a timely notice of appeal. The PCRA court did not
order Appellant to file a Pa.R.A.P. 1925(b) statement.
Nevertheless, Appellant filed a Rule 1925(b) statement on April 4,
2022. The PCRA court issued a Rule 1925(a) opinion concluding
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that Appellant's PCRA petition was untimely filed. PCRA Ct. Op.,
6/28/28, at 3-5.
Commonwealth v. Williams, 293 A.3d 632 (Pa. Super. 2023) (non-
precedential decision at *1) (footnotes omitted).
In this Court’s memorandum decision of February 22, 2023, we vacated
the PCRA court’s order denying PCRA relief because the PCRA court had
allowed Appellant to waive his right to counsel and to proceed pro se at his
PCRA evidentiary hearing without having received a proper Grazier hearing.
Williams, 293 A.3d 632 at *3. We thus remanded the case and directed the
PCRA court “to conduct a Grazier hearing to determine whether Appellant is
indigent and if he wishes to proceed with appointed counsel.” Williams,
293
A.3d 632 at *4.
We continued, “If Appellant is indigent and he does not waive his right
to counsel, the PCRA court shall appoint new counsel to represent Appellant.
The PCRA court must also provide appointed counsel with a reasonable
opportunity to prepare for an amended petition and for a new evidentiary
hearing.” Id. Significantly, we did not direct a new evidentiary hearing be
held in the event Appellant continued to proceed pro se, which he has done.
On remand from this Court’s order, the PCRA court held the hearing of
April 25, 2023, in which it initially advised Appellant, inter alia, that if he
wished to exercise his right to counsel then the court would appoint one and
provide Appellant with a new PCRA evidentiary hearing. Appellant, however,
voiced his preference to proceed pro se, prompting the PCRA court to conduct
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an on-the-record Grazier colloquy to ensure his waiver of counsel was
knowingly, intelligently, and voluntarily tendered. N.T., 4/25/23, at 2-5.
After completing the Grazier colloquy, the PCRA court adjourned the
proceeding with the understanding that Appellant would proceed with the
present appeal on the evidentiary record as it existed. In the PCRA court’s
subsequent order to this effect, it amplified that it was relying on the record
of the December 21, 2021, evidentiary hearing because it had discerned
nothing from the Grazier hearing to suggest that Appellant’s new pro se
testimony would deviate from his pro se testimony previously given.
Moreover, Appellant did not request a new evidentiary hearing, nor did
he make an offer of proof as to what he would add to his prior testimony,
which he had given under oath, especially regarding any matter that would
likely change the outcome of the PCRA court’s decision. This timely appeal
followed.
Appellant raises for this Court’s consideration the following issues on
appeal:
1. Whether Petitioner’s waiver of counsel at the [April 15, 2023]
Grazier hearing was knowing, intelligent, and voluntary when
the [PCRA] Court failed to inquire about the Petitioner’s
background in order to determine if he understood the
implications of waiving counsel; and
2. Whether Petitioner’s waiver of counsel Grazier hearing held
after the PCRA [evidentiary hearing of December 2021, in
which he testified while deprived of his right to counsel,] can
be retroactively applied to the PCRA hearing?
Brief of Appellant, at 4.
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Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court's determination
and whether the court's decision is free of legal error. Commonwealth v. H.
Ford, 947 A.2d 1251 (Pa. Super. 2008), appeal denied,
59 A.2d 319 (Pa.
2008). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513 (Pa. Super. 2007), appeal denied,
932 A.2d 74 (Pa. 2007). We
give no such deference, however, to the court's legal conclusions.
Commonwealth v. J. Ford,
44 A.3d 1190 (Pa. Super. 2012).
“[A] petitioner is not entitled to a PCRA hearing as a matter of right; the
PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact and the petitioner is not entitled to post-
conviction collateral relief, and no purpose would be served by any further
proceedings.” Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super.
2015); Pa.R.Crim.P. 907(1). “A reviewing court on appeal must examine each
of the issues raised in the PCRA petition in light of the record in order to
determine whether the PCRA court erred in concluding that there were no
genuine issues of material fact and in denying relief without an evidentiary
hearing.” Commonwealth v. Derrickson,
923 A.2d 466, 468 (Pa. Super.
2007).
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In Appellant’s first issue, he maintains that the PCRA court’s Grazier
colloquy was deficient despite adhering to the dictates of Pa.R.Crim.P. 1213
because it otherwise failed to inquire about his age, educational background,
and basic comprehension skills to ensure that he possesses the ability to
understand the questions posed to him during the waiver colloquy. See
Commonwealth v. McDonough, 812 A.2d 504, 507 n.1 (Pa. 2002)
(observing, a “waiver colloquy must, of course, always contain a clear
demonstration of the defendant’s ability to understand the questions posed to
him during the colloquy.”).
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3 This Court has observed,
[Pa.R.Crim.P. 121] indicates that if a defendant seeks to waive his
right to counsel, six areas of inquiry must be explored and
explained to the defendant to “ensure that the defendant's waiver
of the right to counsel is knowing, voluntary, and intelligent[.]”
Pa.R.Crim.P. 121(A)(2). In [Commonwealth v. Meehan, 628
A.2d 1151 (Pa. Super. 1993)] we noted that some of the precepts
regarding waiver of counsel in the trial setting were inapplicable
in the PCRA area. We did hold, however, that if a post-conviction
waiver of counsel is requested by the defendant, the PCRA court
must ascertain that “the defendant understands: (1) his right to
be represented by counsel; (2) that if he waived this right, he will
still be bound by all normal procedural rules; and (3) that many
rights and potential claims may be permanently lost if not timely
asserted.” Id. at 1157; see also Commonwealth v. Powell,
787 A.2d 1017, 1019 (Pa. Super. 2001). While we concluded that
the colloquy conducted therein was sufficient, that case clearly
indicates four of the six areas of inquiry contained in Rule 121
apply in the PCRA context.
Commonwealth v. Stossel, 17 A.3d 1286, 1289 (Pa. Super. 2011).
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The record belies Appellant’s contention, as it shows that the PCRA court
had ample opportunity prior to the Grazier hearing to witness Appellant’s
articulate and capable pro se presentation of his case through testimony and
argument at the 2021 PCRA evidentiary hearing. Appellant continued to
demonstrate his ability to understand at the colloquy, where he provided
appropriate and varied responses confirming his comprehension of both his
rights and the nature of the proceedings bearing on his right to counsel. Given
this record, we reject Appellant’s contention that the PCRA court failed to
ensure that he possessed the ability to understand the questions put to him.
Appellant contends in his second issue that the PCRA court erred at the
conclusion of the Grazier hearing when, after it entered its order
acknowledging Appellant may self-represent, it did not schedule a new PCRA
evidentiary hearing. Specifically, Appellant charges error with the PCRA
court’s continued reliance on the pro se testimony he offered at the 2021 PCRA
evidentiary hearing when a proper Grazier hearing did not precede it.
Notably, however, Appellant failed to raise this issue through a timely
objection to the PCRA court’s stated intention to offer a new evidentiary
hearing only if Appellant elected to be represented by newly appointed
counsel. N.T., 4/25/24, at 3. Indeed, prior to that moment, Appellant had
received the PCRA court’s Grazier colloquy admonishment that he would be
bound by all normal rules of procedures, may have rights that if not timely
asserted could be lost permanently, and may lose the right to obtain remedy
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for alleged court errors to which he failed to timely object while acting pro se.
N.T. at 3. On this basis, alone, may we deny the relief he seeks. See
Commonwealth v. Roney, 79 A.3d 595, 611 (Pa. 2013) (finding claims
waived for failure to present them to the PCRA court); Commonwealth v.
Washington,
927 A.2d 586, 601 (Pa. 2007) (“Any claim not raised in the
PCRA petition is waived and not cognizable on appeal.”); Commonwealth v.
Bethune, No. 283 MDA 2023,
2024 WL 511043 (Table) (Pa. Super. filed
February 9, 2024) (non-precedential decision at *5, fn. 10) (“Ordinarily,
failure to raise a claim before the PCRA court results in waiver.”).4 See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”). 5
Accordingly, as Appellant’s challenges to the PCRA court’s order afford
him no relief, we affirm.
Order affirmed.
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4See Pa.R.A.P. 126(b) (stating, non-precedential decisions of the Superior
Court filed after May 1, 2019, may be cited for their persuasive value.
5 Relatedly, we observe that Appellant made no offer of proof to the PCRA
court explaining how additional pro se testimony would differ in any
substantive, meaningful way from his previous pro se testimony or would
likely change the outcome of the PCRA court’s decision. As such, he
demonstrates neither merit to his present claim nor, in the alternative, harm
from the PCRA court’s decision to forgo a second evidentiary hearing.
Furthermore, we acknowledge the PCRA court’s legitimate interest in avoiding
waste of judicial resources by holding multiple hearings which involve
duplication of effort and information.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 03/25/2024
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