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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WADE D. LEE, :
:
Appellant : No. 1591 EDA 2016
Appeal from the PCRA Order April 21, 2016
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0000648-2012
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 11, 2018
Wade D. Lee (“Lee”), pro se, appeals from the Order denying, without
a hearing, his first Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We vacate the Order and remand
for further proceedings.
On July 27, 2012, a jury found Lee guilty of aggravated assault and
other offenses. The trial court imposed an aggregate sentence of ten to
twenty years in prison. This Court subsequently affirmed Lee’s judgment of
sentence, after which the Pennsylvania Supreme Court denied allowance of
appeal. See Commonwealth v. Lee, 91 A.3d 1278 (Pa. Super. 2013)
(unpublished memorandum), appeal denied, 95 A.3d 276 (Pa. 2014).
On August 21, 2014, Lee filed a pro se PCRA Petition, alleging, inter alia,
ineffective assistance of his trial counsel and prosecutorial misconduct. The
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PCRA court thereafter appointed Lee PCRA counsel. In February 2016, Lee’s
PCRA counsel filed an Amended PCRA Petition.
On March 17, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice of
its intent to dismiss Lee’s Amended PCRA Petition without a hearing. In
response, on April 6, 2016, Lee filed a pro se “Motion to Remove Court
Appointed Counsel, and Allowance of Petitioner to File, pro se, 2nd Amended
Post-Conviction Relief Act Petition” (hereinafter “Motion to proceed pro se”).
Therein, Lee averred that his PCRA counsel had abandoned him and sought to
file an amended, pro se PCRA petition raising additional claims of error that
Lee wished to pursue but PCRA counsel had failed to raise.
By an Order entered on April 21, 2016, the PCRA court denied Lee’s
Motion to proceed pro se, and dismissed Lee’s Amended PCRA Petition,
without first conducting a hearing pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998).1 Thereafter, Lee filed the instant timely appeal, pro
se, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors
complained of on appeal.
In his pro se brief, Lee argues that the PCRA court erred in dismissing
his PCRA Petition because, inter alia, his direct appeal counsel was ineffective
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1 However, the PCRA court later reversed its original ruling and granted Lee’s
Motion to proceed pro se, by an Order dated June 28, 2016, and decreed that
Lee’s PCRA counsel shall be withdrawn. Nevertheless, there is no indication
in the record that any Grazier hearing was ever conducted to determine
whether Lee’s waiver of PCRA counsel was knowing, intelligent and voluntary.
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and there was prosecutorial misconduct at his trial. See Brief for Appellant at
i-ii (pages numbered).
Before we reach the merits of Lee’s issues, however, we must, sua
sponte, consider whether he is properly proceeding pro se. As the
Commonwealth correctly concedes in its brief, the PCRA court improperly
failed to conduct a Grazier hearing2 to ensure that Lee is waiving his right to
counsel knowingly, intelligently, and voluntarily, and/or appoint Lee counsel
to assist him in this proceeding involving his first PCRA Petition. “[W]here an
indigent,[3] first-time PCRA petitioner was denied his right to counsel[4] — or
failed to properly waive that right — this Court is required to raise this
error sua sponte and remand for the PCRA court to correct that mistake.”
Stossel, 17 A.3d at 1290 (footnotes and emphasis added); see also
Commonwealth v. Robinson, 970 A.2d 455, 460 (Pa. Super. 2009) (en
banc) (stating that “[r]egardless of how unambiguous a defendant’s
____________________________________________
2 Though the PCRA court states that, on February 28, 2017, it conducted a
hearing “in an effort to delineate and frame [Lee’s] issues efficiently for the
[PCRA court’s] preparation of a [Pa.R.A.P. 1925(a)] opinion[,]” there is no
indication that this was also a Grazier hearing. PCRA Court Opinion,
10/17/17, at 2.
3 See Commonwealth v. Stossel, 17 A.3d 1286, 1288 n.3 (Pa. Super. 2011)
(stating that this Court cannot determine whether a defendant is indigent and
that the PCRA court must address this question in the first instance).
4 See Pa.R.Crim.P. 904(C) (providing, in pertinent part, that “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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expression [of a desire to proceed pro se] may be, without a [Grazier]
colloquy[,] the court cannot ascertain that the defendant fully understands
the ramifications of a decision to proceed pro se and the pitfalls associated
with his lack of legal training. Thus, a defendant cannot ‘knowingly,
voluntarily, and intelligently’ waive counsel until informed of the full
ramifications associated with self-representation.”).
Accordingly, we vacate the PCRA court’s April 21, 2016 Order and
remand this case for the PCRA court to conduct a Grazier hearing to ensure
that Lee is waiving his right to counsel knowingly, intelligently, and voluntarily,
if Lee indicates that he continues to desire to proceed pro se. If, however,
Lee retracts his intention to proceed pro se, and the PCRA court determines
that he is indigent, the PCRA court shall appoint him new PCRA counsel.
See Robinson, 970 A.2d at 460 (stating that “[i]f [a]ppellant retracts his
desire to act as his own counsel, new counsel must be appointed. Once the
appropriate proceedings are conducted, the order denying PCRA relief can be
reinstated, and [a]ppellant, or his counsel, can file an appeal.”); see also
Pa.R.Crim.P. 904(C).
Order vacated; case remanded with instructions; jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/18
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Com. v. Lee, W.
Combined Opinion