Appeal from the Order of February 21, 2007, in the Court of Common Pleas of Dauphin County, Criminal Division, at No. CP-22-CR-0001420-2001.
The opinion of the court was delivered by: Bowes, J.
BEFORE: STEVENS, MUSMANNO, KLEIN, BENDER, BOWES, GANTMAN, SHOGAN, FREEDBERG, and CLELAND, JJ.
¶ 1 The issue presented in this case is whether we should remand for a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). We hold that in any case where a defendant seeks self-representation in a PCRA proceeding and where counsel has not properly withdrawn, a hearing must be held. In doing so, we overrule Commonwealth v. Murray, 836 A.2d 956 (Pa.Super. 2003), to the extent that it indicates that such a hearing is unnecessary. We hereby vacate the denial of PCRA relief and remand.
¶ 2 On June 11, 2002, Appellant, Marvin Jamine Robinson, was convicted of first degree murder, conspiracy, and hindering apprehension due to his participation in the May 27, 2000 shooting death of Marjorie Raymonds. On the day in question, Maria Tate and the victim were walking near Shrub Street in Harrisburg. Ms. Tate witnessed Appellant approach in a car with Appellant's co-defendant, Mark Bennett, in the passenger seat holding a gun. Appellant stopped the vehicle and Bennett exited and shot Ms. Raymonds in the head. Bennett then re-entered the car, which Appellant drove away. Appellant later admitted to police that he was driving the automobile that Bennett exited just prior to shooting Ms. Raymonds and that he left the murder scene with Bennett afterwards.
¶ 3 The Commonwealth also presented evidence that Appellant and Bennett had been close friends for a significant period and that both men dealt drugs. Ms. Tate testified that earlier on the day of the shooting, she had been in a bar with Ms. Raymonds. Bennett gave Ms. Raymonds a quantity of drugs without requiring immediate payment in exchange. At that time, Bennett tapped his gun on the bar, which was a signal that he would shoot the victim if she failed to pay for them.
¶ 4 On August 29, 2002, Appellant was sentenced to life imprisonment. We affirmed the judgment of sentence on August 11, 2003. Commonwealth v. Robinson, 833 A.2d 1149 (Pa.Super. 2003) (unpublished memorandum). Appellant filed a timely PCRA petition, counsel was appointed, and counsel filed a supplemental petition. On February 21, 2007, following a hearing, the PCRA court denied the PCRA petition. Appellant then filed this timely pro se appeal. On March 19, 2007, four days after he filed this appeal, Appellant filed a petition in the trial court expressing a desire to proceed pro se and asking that his waiver colloquy be conducted by video conference in order to expedite the matter. That same day, the trial court entered an order permitting counsel to withdraw and Appellant to represent himself. PCRA counsel never sought permission to withdraw, and the dictates of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), were not followed before the PCRA court relieved counsel of his responsibility to represent Appellant. A colloquy was never conducted to ascertain that Appellant was making a knowing, voluntary, and intelligent decision to waive counsel.
¶ 5 Pursuant to the rules of criminal procedure and interpretive case law, a criminal defendant has a right to representation of counsel for purposes of litigating a first PCRA petition through the entire appellate process. Pa.R.Crim.P. 904(c); Commonwealth v. White, 871 A.2d 1291, 1294-95 (Pa.Super. 2005); Commonwealth v. Quail, 729 A.2d 571, 573 (Pa.Super. 1999). In Commonwealth v. Grazier, supra, the defendant had filed a post-conviction petition, counsel was appointed, and the petition was denied. The defendant then filed a pro se appeal and several petitions to proceed pro se. We denied the defendant permission and directed counsel to brief the appeal. After we denied relief, the defendant petitioned our Supreme Court for review and again asked to represent himself.
¶ 6 The Court determined that we had erroneously denied the defendant's petitions seeking self-representation. It noted that a criminal defendant has a constitutional right to represent himself and that since the defendant had tendered a timely and unequivocal request to "conduct his appeal pro se, it was error to simply deny the request and refer the matter to counsel." Id. at 82. The Court expressly continued, however, "When a waiver of the right to counsel is sought at the post-conviction and appellate stages, an on-the-record determination should be made that the waiver is a knowing, intelligent, and voluntary one." Id.; see also Commonwealth v. Brown, 845 A.2d 199 (Pa. 2004) (remanding per curiam to the trial court to make on-the-record determination that PCRA petitioner's waiver of counsel for first PCRA petition was "knowing, intelligent and voluntary").
¶ 7 In Commonwealth v. Murray, supra at 959 n.1, we held that the counsel-waiver colloquy required under Grazier can be dispensed within the PCRA context if a defendant has unequivocally expressed a desire to proceed pro se and if the defendant appears to be representing himself adequately. For the following reasons, we conclude that Murray's holding in this respect is inconsistent with our Supreme Court's mandates in this area.
¶ 8 In the context of waiver of counsel for purposes of trial proceedings, our Supreme Court has continually stressed the absolute necessity to conduct a colloquy:
In Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976), where we concluded that the trial court committed reversible error by allowing appellant to proceed to trial under his own representation without first conducting a thorough onthe-record colloquy to determine whether he knowingly and understandingly waived his constitutional right to representation by counsel, we stated:
It is, of course, firmly established that an accused has a constitutional right to representation by counsel during trial. While an accused may waive his constitutional right, such a waiver must be the "free and unconstrained choice of its maker". Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), and also must be made knowingly and intelligently, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). To be a knowing and intelligent waiver [the] defendant must be aware of both the right and of the risks of forfeiting that right. SeeCommonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971). 468 Pa. 193, 198, 360 A.2d 617, 620. Furthermore, the presumption must always be against the waiver of a constitutional right. Nor can waiver be presumed where the record is silent. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. Thus, this Court is constitutionally bound to place the burden of proving waiver on the Commonwealth. Commonwealth v. Norman, 447 Pa. 217, 221-222, 285 A.2d 523, 526 (1971).
Commonwealth v. Monica, 597 A.2d 600, 603 (Pa. 1991) (emphasis added); see alsoCommonwealth v. Ford, 715 A.2d 1141 (Pa.Super. 1998), Commonwealth v. Smith, 626 A.2d 614 (Pa.Super. 1993), and Commonwealth v. Carothers, 675 A.2d 734 (Pa.Super. 1996) (all holding that ...