Opinion
650 EDA 2023
08-29-2024
COMMONWEALTH OF PENNSYLVANIA v. ANDRE MOORE Appellant
Benjamin D, Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered January 30, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005396-2018
Benjamin D, Kohler, Esq.
BEFORE: PANELLA, P.J.E., NICHOLS, J., and BECK, J.
MEMORANDUM
BECK, J.
Andre Moore ("Moore") appeals from the order entered by the Delaware County Court of Common Pleas dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). Moore argues that the PCRA court failed to hold a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), following his request to represent himself. After review, we conclude that the PCRA court erred in failing to hold a Grazier hearing to determine whether Moore's request to represent himself during the PCRA proceedings was knowing, voluntary, and intelligent. Therefore, we vacate the PCRA court's order and remand for a Grazier hearing.
Based on our disposition of the case, a recitation of the underlying facts is unnecessary. Relevantly, on September 12, 2019, a jury convicted Moore of one count each of aggravated indecent assault of a complainant less than thirteen years of age, indecent assault of a complainant less than thirteen years of age, corruption of minors, and aggravated indecent assault of a child. The trial court sentenced Moore to serve an aggregate prison term of eleven years and three months to twenty-two years and six months. This Court affirmed Moore's judgment of sentence, and our Supreme Court denied allowance of appeal. See Commonwealth v. Moore, 755 EDA 2020 (Pa. Super. filed June 30, 2021) (non-precedential memorandum), appeal denied, 272 A.3d 950 (Pa. 2022).
On March 25, 2022, Moore timely filed a pro se PCRA petition, raising numerous issues. The PCRA court appointed counsel, who filed an amended PCRA petition, raising a single claim of ineffective assistance of trial counsel. Moore subsequently wrote a letter to PCRA counsel requesting that counsel include all the issues he raised in his pro se PCRA petition filed on March 25, 2022. In lieu of counsel's agreement to supplement the amended PCRA petition, Moore stated that he would request that the PCRA court remove counsel. On August 5, 2022, Moore filed a pro se motion seeking either to have new counsel appointed or to proceed pro se. On August 21, 2022, Moore sent a letter to the "Clerk of Courts" that requested information on the status of the motion he filed on August 5, 2022. In this letter, Moore also made allegations of ineffectiveness against PCRA counsel. The Commonwealth subsequently filed a motion to deny the request for an evidentiary hearing and dismiss the amended PCRA petition.
On September 14, 2022, the PCRA court issued notice of its intent to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1). In the notice, the PCRA court addressed some of the issues raised by Moore in his March 25, 2022 pro se PCRA petition, as well as the single issue raised in the amended PCRA petition. The PCRA court acknowledged, in a footnote, that Moore had filed pro se motions asking that PCRA counsel include the issues from the pro se petition, he be provided new counsel, or, alternatively, he be permitted to proceed pro se. Moore responded to the notice, noting that PCRA counsel failed to include certain issues that Moore had raised in his pro se PCRA petition.
The PCRA court held a video conference on October 25, 2022, attended by Moore, PCRA counsel, and an assistant district attorney. At the hearing, Moore discussed the issues he sought to raise before the PCRA court. At the conclusion of the hearing, the PCRA court directed PCRA counsel and the assistant district attorney to file briefs with the court. During this hearing, Moore did not indicate to the PCRA court that he wanted to represent himself. The PCRA court ultimately dismissed the PCRA petition.
PCRA counsel then filed a notice of appeal from the dismissal of the PCRA petition, which was docketed at 650 EDA 2023. On March 21, 2023, Moore filed a pro se statement of matters complained of on appeal, again requesting that the PCRA court appoint new counsel or permit him to proceed pro se. This Court forwarded the documents to the PCRA court on April 10, 2023. Upon receipt of our Order, the PCRA court held a Grazier hearing on April 18, 2023, and entered an order the following day stating that Moore may proceed pro se on appeal and dismissing PCRA counsel. Moore then filed with this Court a pro se request for remand to the PCRA court to present the issues raised in his initial pro se PCRA petition. We filed a per curiam order denying Moore's request for remand "without prejudice to [his] right to again raise the issues in the application before the panel of this Court assigned to decide the merits of the appeal." Commonwealth v. Moore, 650 EDA 2023 (Pa. Super. filed Jul. 11, 2023) (Per Curiam Order). On August 14, 2023, private counsel entered an appearance for Moore, who filed an appellate brief on Moore's behalf.
We note that Moore filed a pro se notice of appeal, which was docketed in this Court at 499 EDA 2023. Moore also filed another pro se notice of appeal, which was docketed at 651 EDA 2023. Subsequently, this Court sua sponte dismissed both pro se appeals as duplicative of the counseled notice of appeal docketed at 650 EDA 2023. Both dismissal orders stated that all properly preserved issues may be raised in the appeal at 650 EDA 2023.
Moore raises one question for our review: "Did the PCRA Court err when it ignored [Moore's] request for a hearing pursuant to [Grazier]?" Moore's Brief at 4.
Moore argues that because he "was not allowed to proceed [before the PCRA court pro se] in accordance with his Sixth Amendment rights, these claims have not been developed in any way." Id. at 9. He contends that "[t]he proceedings that have resulted in this appeal were fundamentally flawed by virtue of the PCRA [c]ourt's refusal to adhere to well settled precedent." Id. Regarding the Grazier hearing that the PCRA court conducted on April 18, 2023, which was convened during the pendency of this appeal, Moore observes that the "hearing is irrelevant, since it was held after [his PCRA] petition was dismissed and after [he] asked for a hearing before [his PCRA] petition was dismissed." Id. at 8 (emphasis omitted).
A PCRA petitioner has a rule-based "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) (citations omitted); see also Pa.R.Crim.P. 904(C). Likewise, a criminal defendant has a concomitant right to waive counsel's assistance and proceed pro se. Commonwealth v. Starr, 664 A.2d 1326, 1334-35 (Pa. 1995); see also Pa.R.Crim.P. 121(A)(1). More specifically,
[a] criminal defendant has a long-recognized constitutional right to dispense with counsel and to defend himself before the court. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975) (implicit in the structure of the Sixth
Amendment is the right of a criminally accused to conduct his own defense); Commonwealth v. Szuchon, 506 Pa. 228, 250, 484 A.2d 1365, 1376-1377 (1984) (an accused has a right to conduct his own defense pursuant to Article 1, Section 9 of the Pennsylvania Constitution). In short, this highly personal constitutional right operates to prevent a state from bringing a person into its criminal courts and in those courts force a lawyer upon him when he asserts his constitutional right to conduct his own defense. Faretta, supra, at 807, 95 S.Ct. at 2527.Starr, 664 A.2d at 1334-35 (footnotes omitted).
We have held that "in any case where a defendant seeks self-representation in a PCRA proceeding and where counsel has not properly withdrawn," the PCRA court must hold a hearing pursuant to Grazier and determine whether "the defendant's waiver of the right to counsel is knowing, voluntary, and intelligent." Robinson, 970 A.2d at 456, 459 (citations omitted); see also Pa.R.Crim.P. 121(A)(2); Grazier, 713 A.2d at 82 ("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.") (citations omitted). To that end, our Supreme Court expressly stated that "it is up to the trial court, and not counsel, to ensure that a colloquy is performed if the defendant has invoked his right to self-representation." Commonwealth v. Davido, 868 A.2d 431, 437-38 (Pa. 2005).
Here, on August 5, 2022, Moore filed a request for the removal of PCRA counsel during the PCRA court's proceedings, seeking either the appointment of new counsel or the right to represent himself pursuant to Grazier. Motion,
8/5/2022. Instead, on October 25, 2022, the PCRA court convened a proceeding, at which PCRA counsel was present in a representative capacity and Moore participated by video conference, wherein it allowed Moore to orally state the issues that he believed PCRA counsel erroneously failed to raise in his counseled petition for PCRA relief filed on Moore's behalf. At no time during this proceeding did the PCRA court colloquy Moore as to his stated desire to represent himself. See generally N.T., 10/25/2022, at 1-12.
The PCRA court erred in not conducting an on-the-record colloquy to ensure that Moore's waiver of his right to counsel was knowing, voluntary, and intelligent. Grazier, 713 A.2d at 82 (stating courts are not "free to ignore an appellant's request to remove counsel and proceed pro se"). Although the PCRA court states that it properly complied with this Court's Order by holding a Grazier hearing on April 18, 2023, thus permitting Moore to proceed pro se on appeal, PCRA Court Opinion, 6/29/2023, at 4, it is silent as to its failure to respond to Moore's earlier request to proceed pro se before the dismissal of his PCRA petition. Our law is clear 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." Robinson, 970 A.2d at 456 (emphasis added).
Moreover, we reject the PCRA court's belated (and abbreviated) attempt to address the issues raised by Moore at the October 25, 2022 proceeding and in its Pa.R.A.P. 1925(a) opinion to circumvent its failure to hold a Grazier hearing. Indeed, this tacit relegation of Moore's August 5, 2022 request to proceed pro se as harmless error is itself error. See Starr, 664 A.2d at 1335 (stating that "the denial of a criminal defendant's right to proceed pro se is not subject to a harmless error analysis"); see also McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (holding "the right to self-representation is either respected or denied; its deprivation cannot be harmless").
The PCRA court's decision to address Moore's claims in his pro se PCRA petition essentially allowed for hybrid representation, a practice that has long been prohibited by our Supreme Court. See, e.g., Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011); Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016).
Accordingly, because the PCRA court did not conduct a Grazier hearing when Moore sought to proceed pro se during the PCRA proceedings and prior to the dismissal of his PCRA petition, we vacate the PCRA court's order and remand for a Grazier hearing. See Grazier, 713 A.2d at 82.
Order vacated. Case remanded with instructions. Jurisdiction relinquished.
Judge Nichols joins the memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
PANELLA, P.J.E.
I respectfully dissent from the decision by my esteemed colleagues, not that I find any fault in their legal analysis, but because I conclude that the Appellant, Andre Moore, has intentionally manipulated the procedural process to his advantage. I would affirm based on Judge Capuzzi's comprehensive and well-written opinion filed on June 29, 2023, which denied the current application for relief filed under the Pennsylvania Post Conviction Relief Act("PCRA"), as well as Judge Capuzzi's opinion dated June 15, 2020, which followed Moore's appeal of his judgement of sentence entered on November 26, 2019.
42 Pa. Cons. Stat. § 9541, et seq.