J-S45020-20

2020 PA Super 282

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD FRIEDLAND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 330 EDA 2020

Appeal from the PCRA Order Entered December 12, 2019,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010658-2012, 

CP-51-CR-0010659-2012.

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD FRIEDLAND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 331 EDA 2020

Appeal from the PCRA Order Entered December 12, 2019,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0010658-2012, 

CP-51-CR-0010659-2012.

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY KUNSELMAN, J.: FILED DECEMBER 11, 2020

Edward Friedland appeals from the order denying his first petition filed 

pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We 

affirm.
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The pertinent facts and procedural history are as follows: While robbing 

a grocery store, Friedland shot and injured the storeowner, as well as the 

storeowner’s friend, who died of his injuries. At two separate dockets, 

Friedland was charged with various crimes, one docket relating to the 

storeowner, and one relating to the shooting victim. The Commonwealth 

consolidated the dockets for a two-day, non-jury trial, resulting in Friedland’s 

conviction of multiple charges, including second-degree murder and robbery. 

The next day, the trial court sentenced Friedland to an aggregate term of life 

in prison. Following the denial of his post-sentence motions, Friedland filed a 

timely appeal to this Court. In an unpublished memorandum filed on January 

10, 2017, we rejected his challenges to the sufficiency and weight of the 

evidence supporting his convictions, and affirmed Friedland’s judgment of 

sentence. Commonwealth v. Friedland, 160 A.3d 249 (Pa. Super. 2017). 

Friedland did not seek further review. 

On December 14, 2017, Friedland filed a pro se PCRA petition. In his 

petition, Friedland specifically requested that counsel not be appointed to 

represent him in his PCRA proceedings. Accordingly, on May 10, 2018, the 

PCRA court held a hearing order to determine whether Friedland’s waiver of 

his right to counsel was knowing, intelligent and voluntary. See 

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998); Pa.R.Crim.P. 121. At 

the conclusion of the hearing, the Court concluded that Friedland’s waiver was 
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knowing, intelligent and voluntary, and therefore, the court permitted him to 

proceed pro se.

The PCRA court summarized Friedland’s subsequent court filings as 

follows:

Following [his] Grazier hearing in May 2018, [Friedland] 

requested numerous extensions to file an amended PCRA 

petition, a supplemental petition, and a response to the 

Commonwealth’s Motion to Dismiss, all of which the [PCRA 

court] granted. [He] requested another extension on June 

7, 2019, to amend his previously submitted petition in order 

to cure defects, eliminate meritless claims, provide witness 

certifications, and add new claims. That request was 

granted, as was another request for more time filed in 

August 2019. [Friedland] then filed another amended 

petition and supplemental petition in September 2019. At 

the direction of the [PCRA court], the Commonwealth 

responded to all of [Friedland’s] numerous claims. 

Finally, in November 2019, after considering all of 

[Friedland’s] claims and the Commonwealth’s responses 

thereto, the [PCRA court] issued its [Pa.R.Crim.P.] 907 

Notice, rejecting [Friedland’s] arguments. Only then did 

[Friedland], seeking to start the process anew, ask for a 

lawyer [in response to the PCRA court’s Rule 907 Notice]. 

Accordingly, not until after the [PCRA court] determined 

that the claims alleged in [Friedland’s] petition were without 

merit, did [he] request that counsel be appointed.

PCRA Court Opinion, 6/9/20, at 5 (paragraph break added).

By order entered December 12, 2019, the PCRA court denied Friedland’s 

“belated request for counsel”, id. at 6, and denied his PCRA petition. Friedland 

filed timely notices of appeal,1 and the PCRA court appointed him appellate 

____________________________________________

1

In accordance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), 

Friedland has filed a separate notice of appeal at each lower court docket 

number. 
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counsel. Both Friedland and the PCRA court have complied with Pa.R.A.P. 

1925.

Friedland now raises the following issue:

1. Did the PCRA court err in refusing [Friedland’s] request 

for counsel on a first PCRA petition prior to dismissal of 

his pro se PCRA where [Friedland] indicated prior to 

dismissal that he needed the “help of an attorney” and 

could not, “fulfill his burden” while acting pro se?

Friedland’s Brief at 3.

“Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error.” Commonwealth v. Beatty, 

207 A.3d 957, 960-61 (Pa. Super. 2019) (citation omitted). “We afford the 

court’s factual findings deference unless there is no support for them in the 

certified record.” Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa. 

Super. 2019) (citation omitted).

In support of his claim, Friedland emphasizes that a PCRA petitioner is 

entitled to counsel when litigating his first PCRA petition. Freedland’s Brief at 

7-8. Here, however, Friedland was afforded the opportunity to have counsel 

appointed, but requested to proceed without one; following a full Rule 121 

colloquy, he waived this right. See PCRA Court Opinion, 6/9/20, at 4. See 

also Commonwealth v. Figueroa, 29 A.3d 1177, 1181-82 (Pa. Super. 

2011)(remanding for a Grazier colloquy to inform a PCRA petitioner who 

“vehemently denied that he desires legal counsel” that he was entitled to be 
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represented by counsel and a counseled amended petition when pursuing his 

first PCRA petition).

As noted by the PCRA court, Friedland is not challenging the adequacy 

of his Rule 121 waiver. Rather, at issue is whether the PCRA court abused its 

discretion in denying Friedland‘s request for the appointment of counsel 

pursuant to Pa.R.Crim.P. 904. Rule 904 provides, in pertinent part:

(C) Except [for appointment of counsel in death penalty 

cases], 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.

***

(E) The judge shall appoint counsel to represent a 

defendant whenever the interests of justice require it.

Pa.R.Crim.P. 904.

“It is well established that a defendant can waive the right of selfrepresentation after asserting it.” Commonwealth v. Bryant, 855 A.2d 726, 

737 (Pa. 2004) (citations omitted). With regard to a request to proceed pro 

se, this Court has explained:

A defendant’s request to proceed pro se must be timely and 

unequivocal and not made for the purposes of delay. In 

reviewing the timeliness of the request to proceed pro se, 

courts generally consider the point in the proceedings that 

the request is being made. This Court has held that when 

the request to proceed pro se is asserted after meaningful 

trial proceedings have begun, it is within the discretion of 

the trial court [to grant or deny the request].
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Commonwealth v. El, 933 A.2d 657, 662-63 (Pa. Super. 2007) (citations 

omitted), affirmed, 977 A.2d 1158 (Pa. 2009).

We believe the same discretion should be afforded to the PCRA court 

when a defendant untimely requests counsel during PCRA proceedings. To 

require the appointment of counsel after the PCRA court had conducted a 

comprehensive Rule 121 colloquy and found no merit to Friedland’s issues, 

would inappropriately provide Friedland a second attempt at post-conviction 

relief. Instead the PCRA court should be able to consider the timeliness of the 

request and have the discretion to deny it.

Here, the PCRA court found that it properly exercised its discretion when 

it denied Friedland’s request for counsel:

Whether a defendant who had validly waived his right to 

counsel in a first PCRA petition may rescind that waiver at 

some point in the proceedings before the [PCRA court] 

rejects all of his arguments is not at issue in this appeal. 

Where, as here, [Friedland] has a change of heart and first 

requests counsel only after seeing a [Rule] 907 notice, his 

request for counsel is untimely and may properly be 

rejected. The purpose of a [Rule] 907 notice is to give a 

defendant an opportunity to cure technical deficiencies in 

the PCRA pleadings or submissions and to raise issues as to 

ineffective assistance of counsel. See Commonwealth v. 

Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012)[.] It is not 

to give defendant an opportunity to start anew, with a 

second bite at the apple, after being displeased with the 

results of his efforts during extensive and lengthy litigation.

PCRA Court Opinion, 6/9/20, at 5. 

We discern no abuse of discretion.
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In arguing that his initial decision to proceed pro se “was not 

irrevocable,” Friedland ignores the timing of his request. El, supra. His 

reliance upon the United States Supreme Court’s decision in Faretta v. 

California, 422 U.S. 806 (1975), is inapposite. In Faretta, the High Court 

vacated the defendant’s judgment of sentence after holding that he had a 

constitutional right to proceed without counsel at his state criminal trial when 

he voluntarily and intelligently elected to do so. Faretta, 422 U.S. 835-36. 

The Court further concluded that the state cannot force a lawyer upon him 

when he insisted that he wanted to conduct his own defense. Id.

Friedland cites the following sentence from Faretta to support his claim 

that the High Court implicitly ruled that a defendant can “rescind” his request 

to proceed pro se: “Of course, a State may—even over objection by the 

accused—appoint a ‘standby counsel’ to aid the accused if and when the 

accused requests help, and to be available to represent the accused in the 

event that termination of defendant’s self-representation is necessary.” 

Friedland’s Brief at 9 (citing Faretta 422 U.S. at 834, n.46).

Unlike the present case, Faretta dealt with the representation status of 

a defendant prior to his trial and conviction. Moreover, the footnote where 

the sentence cited by Friedland appears was discussing the High Court’s 

acknowledgment that “many criminal defendants representing themselves 

may use the courtroom for deliberate disruption of their trials.” Faretta, 422 

U.S. at 834, n.46. In this case, Friedland had litigated his pro se PCRA 

petition, and only then sought counsel once the PCRA court issued notice of 
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its intent to dismiss the petition without a hearing. When viewed in this 

context, Faretta in no way supports Friedland’s argument.2

Finally, Friedland argues that the PCRA court “seems to have 

acknowledged” that it was in “the interest of justice” to assist him in the 

litigation of his PCRA petition, because the court appointed counsel to 

represent him in this appeal. Friedland’s Brief at 9-10. We cannot agree. It 

is well settled that a PCRA petitioner has a 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). Because Friedland clearly requested counsel to aid him in 

challenging the denial of his PCRA petition, the PCRA court correctly appointed 

appellate counsel in this case.

In sum, because the PCRA court did not abuse its discretion in refusing 

Friedland’s request for counsel to assist him in re-litigating this matter before 

the PCRA court, we affirm its order denying him post-conviction relief.

Order affirmed.

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2 Friedland also cites Robinson v. Ignacio, 360 F.3d 1044, 1058 (9th Cir. 

2004), for the proposition a “strong presumption exists that a defendant’s 

post-trial request for assistance [of counsel] should not be refused.” 

Robinson did not involve the same procedural posture as this case. Rather, 

in that case, the defendant waived his right to counsel at trial, but requested 

counsel to represent him at sentencing.

 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/11/2020