¶ 1 The issue presented in this case is whether we should remand for a hearing pursuant to
Commonwealth v. Grazier, 552
Pa. 9,
¶ 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. Appel
¶ 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,
¶ 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,
¶ 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,
¶ 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 on-the-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. See Commonwealth v. Barnette,445 Pa. 288 ,285 A.2d 141 (1971).
468 Pa. 193 ,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,
¶ 9 More recently, in
Commonwealth v. Davido,
¶ 10 While the right to legal representation in the PCRA context is not constitutionally derived, the importance of that right cannot be diminished merely due to its rule-based derivation. In the post-conviction setting, the defendant normally is seeking redress for trial counsel’s errors and omissions. Given the current time constraints of 42 Pa.C.S. § 9545, a defendant’s first PCRA petition, where the rule-based right to counsel unconditionally attaches, may well be the defendant’s sole opportunity to seek redress for such errors and omissions. Without the input of an
¶ 11 In
Commonwealth v. Meehan,
¶ 12 That rule 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
Mee-han,
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,
¶ 13 Pa.R.Crim.P. Rule 121(A)(2) provides:
(2) To ensure that the defendant’s waiver of the right to counsel is knowing, voluntary, and intelligent, the judge or issuing authority, at a minimum, shall elicit the following information from the defendant:
(a) that the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the charges against the defendant and the elements of each of those charges;
(c) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;
(e) that the defendant understands that there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and
(f) that the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.
¶ 14 Subsections (b) and (c) are not relevant in the PCRA setting; however, the remainder of concepts examined in Rule 121 clearly impact on whether a defendant understands the full import of his decision to act as his own counsel. Therefore, in accordance with
Meehan
and as required by
Davido,
we conclude that if a PCRA defendant indicates a desire to represent himself, it is incumbent upon the
¶ 15 We simply cannot agree with
Murray’s
position that the necessity of a colloquy is obviated where the defendant clearly and unequivocally indicates a desire to represent himself and has prepared what appears to be an adequate brief. Regardless of how unambiguous a defendant’s expression may be, without a 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.
See Commonwealth v. Brazil,
¶ 16 Furthermore, the fact that Appellant has prepared what appears to be an adequate brief with supporting citation does not fill the vacancy left by the absence of a colloquy. Id. (appointment of standby counsel does not eliminate need for waiver-of-counsel colloquy; “irrespective of the quality of representation achieved at trial, when a defendant indicates a desire to waive his right to counsel, a full waiver colloquy must be conducted”) (emphasis added).
¶ 17 When a defendant is representing himself, he lacks legal expertise and may overlook meritorious issues and defenses or pertinent and compelling legal authority. We, as an appellate court, would not be permitted to examine sua sponte any issues not raised before us. It is only after a defendant knowingly, voluntarily, and intelligently relinquishes legal representation that he may be charged with any default resulting from his lack of training.
¶ 18 Therefore, we now disclaim Murray to the extent that it holds that a waiver colloquy is unnecessary. Such a colloquy must be held by the PCRA court of its own accord and in conformity with our decision herein once the defendant has expressed a desire to proceed pro se as long as PCRA counsel has not properly withdrawn by complying with the dictates of Tumer/Fin-ley.
¶ 19 Since counsel in the present case did not properly withdraw and Appellant, after indicating that he wanted to proceed pro se, was not afforded a colloquy, we vacate the denial of PCRA relief and remand for such a colloquy. If Appellant 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 Appellant, or his counsel, can file an appeal.
¶ 20 Order denying PCRA relief is vacated. Case remanded for conduct of a colloquy in accordance with Grazier. Jurisdiction relinquished.
¶ 21 Judges GANTMAN and SHOGAN Concur in the Result.