J-S62034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HAKIM ABDUL WAKEEL

Appellant No. 3449 EDA 2013

Appeal from the PCRA Order November 12, 2013

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0003579-2008

BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED APRIL 14, 2015

Hakim Abdul Wakeel appeals from the order entered in the 

Northampton County Court of Common Pleas, dated November 12, 2013, 

dismissing his first petition filed under the Post-Conviction Relief Act 

(“PCRA”).”1 Wakeel seeks relief from the amended judgment of sentence of 

an aggregate 315 to 846 months’ imprisonment imposed on February 23, 

2011, following his jury conviction of four counts of robbery, two counts of 

aggravated assault, one count of burglary, one count each of conspiracy to 

commit aggravated assault, robbery, and burglary, four counts of recklessly 

endangering another person, four counts of unlawful restraint, five counts of 

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1

 42 Pa.C.S. §§ 9541-9546.
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terroristic threats, and two counts of simple assault.2 On appeal, Wakeel 

argues the PCRA court erred by refusing to allow him to dismiss his courtappointed counsel, which prevented him from properly preserving and 

arguing his Brady3claim. Based on the following, we are constrained to 

reverse and remand for further proceedings. 

The facts underlying Wakeel’s convictions are well known to the 

parties, and have been fully discussed in our decision in connection with 

Wakeel’s direct appeal. See Commonwealth v. Wakeel, 47 A.3d 1260 

[1205 EDA 2011] (Pa. Super. 2012) (unpublished memorandum at 1-3). 

Therefore, we need only state that Wakeel’s convictions arose out of a 

robbery and burglary that he committed on July 26, 2007, together with two 

co-conspirators. 

On May 18, 2009, a jury convicted Wakeel of 25 criminal counts, as 

mentioned above. On June 12, 2009, the trial court originally sentenced him 

to an aggregate term of 336 to 888 months’ imprisonment. Wakeel filed a 

direct appeal. On December 14, 2010, a panel of this Court reversed the 

judgment of sentence and remanded the matter for resentencing. See

Commonwealth v. Wakeel, 23 A.3d 579 [2179 EDA 2009] (Pa. Super. 

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2

 18 Pa.C.S. §§ 3701(a)(1)(i), 2702(a)(4), 3502(a), 903(a)(1), 2705, 

2902(a)(1), 2706(a)(1), and 2701(a)(3), respectively.

3

 Brady v. Maryland, 373 U.S. 83 (1963).
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2010) (unpublished memorandum).4 On February 23, 2011, Wakeel was 

resentenced to an aggregate term of 315 to 846 months’ incarceration. He 

filed a second direct appeal,5and a panel of this Court affirmed the 

judgment of sentence on March 30, 2012. See Wakeel, supra, 47 A.3d 

1260.

On April 10, 2013, Wakeel filed a timely pro se PCRA petition. Counsel 

was appointed to represent him. Nevertheless, Wakeel filed an amended pro 

se PCRA petition on May 23, 2013. Counsel filed a “Comprehensive 

Description of Issues Raised Pursuant to Post-Conviction Relief Act, Title 42 

Pa.C.S.A. §9541 et seq. and Pennsylvania Rules of Criminal Procedure, Rule 

905” and a brief in support of Wakeel’s claims on July 3, 2013, and October 

9, 2013, respectively. A PCRA evidentiary hearing was held on September 

24, 2013. 

Thereafter, Wakeel filed a motion requesting counsel be dismissed and 

that he be allowed to proceed pro se and file his own brief.6 PCRA counsel 

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4

 The panel determined that because the charges were based on a single 

criminal episode, Wakeel’s convictions for terroristic threats and simple 

assault merged into his robbery convictions for sentencing purposes. See 

Wakeel, supra, 23 A.3d 579. 

5

 In that appeal, Wakeel raised legality of sentence, discretionary aspects of 

sentencing, sufficiency, weight, and suppression claims.

6

 In that motion, Wakeel alleged PCRA counsel’s ineffectiveness with respect 

to a Brady violation. See Motion to “Go Pro Se of Filing My P.C.R.A. 

Evidentiary Hearing Brief,” 10/3/2013, at 1.
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also filed a petition to withdraw on October 23, 2013. On November 8, 

2013, a “motion to dismiss” counsel hearing was conducted. That same day, 

the PCRA court granted counsel’s petition to withdraw, per Wakeel’s request, 

but denied Wakeel’s request to file a pro se brief. Four days later, the court 

entered an order and opinion, denying Wakeel’s PCRA petition. Wakeel filed 

a timely pro se notice of appeal.7

In his sole issue on appeal, Wakeel claims the PCRA court erred by 

refusing to allow him to represent himself, which prevented him from 

properly raising an allegedly valid Brady claim. Wakeel’s Brief at 12. 

Specifically, he states: 

[T]he crux of [his] collateral attack on his conviction was the 

nature of the lenient treatment [his co-defendant] received after 

he testified against [Wakeel]. When PCRA counsel failed to elicit 

any testimony from trial/appellate counsel about this crucial 

subject, and then when PCRA counsel failed to introduce even 

the sentencing notes from [his co-defendant’s] sentencing, 

[Wakeel] was understandably concerned that his rights were not 

being protected. This became all the more evident immediately 

after PCRA counsel filed an inadequate brief.

Id. Wakeel avers he contacted the PCRA court several times, “begging” to 

be allowed to represent himself and that PCRA counsel’s brief be withdrawn. 

Id. at 13. He argues the court erred by refusing his request, and “the 

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7

 On December 16, 2013, the PCRA court ordered Wakeel to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Wakeel filed a concise statement on January 6, 2014. The PCRA court 

issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 9, 2014, relying 

on its November 12, 2013, opinion. During this time, Wakeel also retained 

private counsel, who filed the appellate brief.
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consequences were devastating” because the court found his Brady claim to 

be waived for failure to raise the issue in the context of an ineffective 

assistance of prior counsel claim. Id.8 However, before we may continue 

with the analysis of this claim, we must address Wakeel’s request to proceed 

pro se and the November 8, 2013, “motion to dismiss” counsel hearing. 

“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.” 

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) 

(citations omitted); see also Pa.R.Crim.P. 904(C). In Commonwealth v. 

Grazier, 713 A.2d 81, 82 (Pa. 1998), the Pennsylvania Supreme Court held: 

“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.”9 In Robinson, a panel 

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8

 Moreover, Wakeel contends the court also erred in finding his underlying 

Brady claim meritless. Id. at 14. He states the court’s finding that there 

was no agreement in place between his co-defendant and the 

Commonwealth in exchange for testimony was belied by the record and 

contrary to precedent set forth in Commonwealth v. Strong, 761 A.2d 

1167 (Pa. 2000). Id. 

9

 We note we may address this issue sua sponte. See Commonwealth v. 

Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (“[W]e acknowledge that 

[the petitioner] did not argue that he was entitled to counsel, or in any way 

challenge his waiver of that right, on appeal to this Court. That fact, 

however, does not prevent us from sua sponte addressing this issue and 

remanding his case.”)
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of this Court set forth the requirements necessary to ensure a petitioner 

properly waives his right to counsel during a Grazier hearing:

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 attorney, important rights and defenses 

may be forever lost. 

In Commonwealth v. Meehan, 427 Pa. Super. 261, 628 

A.2d 1151 (Pa. Super. 1993), which was specifically cited with 

approval in our Supreme Court’s pronouncement in Grazier, we 

addressed whether the defendant had validly waived his rulebased right to counsel for purposes of a PCRA hearing. The 

defendant therein complained that he did not actually waive his 

right to counsel because the waiver colloquy was inadequate in 

that it did not conform to the requirements of Pa.R.Crim.P. 121, 

formerly Pa.R.Crim.P. 318, waiver of counsel. 

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 Meehan, 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, 2001 PA 

Super 342, 787 A.2d 1017, 1019 (Pa. Super. 2001). While we 

concluded that the colloquy conducted therein was sufficient, 

that case clearly indicates four of the six areas of inquiry 

contained in Rule 121 apply in the PCRA context. 
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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.

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 [Commonwealth 

v.] Davido, [868 A.2d 431 (Pa. 2005) (finding that it is up to 
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the trial court to ensure that a proper colloquy is performed 

where a defendant has invoked his right to self-representation),] 

we conclude that if a PCRA defendant indicates a desire to 

represent himself, it is incumbent upon the PCRA court to elicit 

information from the defendant that he understands the items 

outlined in Pa.R.Crim.P. 121(A)(2)(a), (d), (e), and (f). A court 

must explain to a defendant that he has the right to counsel, in 

accordance with (a), that he is bound by the rules as outlined in 

(d), and that he may lose rights, as indicated in (f). Subsection 

(e) must be appropriately tailored so that a defendant is 

informed that “there are possible defenses to these charges that 

counsel might be aware of, and if these defenses are not raised 

[in a PCRA petition], they may be lost permanently.”

Robinson, 970 A.2d at 458-460.

Turning to the present matter, a review of the November 8, 2013, 

“motion to dismiss” counsel hearing reveals the PCRA court’s inquiry was not 

properly in accordance with Grazier, and with respect to the items set forth 

in Rule 121(A)(2), to ensure that Wakeel’s decision to proceed pro se was 

made in knowing, voluntary, and intelligent manner. See N.T., 11/8/2013, 

at 2-6. 

Furthermore, this omission is augmented by the fact that at the 

hearing, while granting him permission to proceed pro se, the court denied 

Wakeel’s request to file a pro se brief to raise the claim of PCRA counsel’s 

ineffectiveness regarding the Brady argument. Moreover, the court waited 

only four days after granting Wakeel pro se status to then deny his request 

for PCRA relief. It is well-settled that “a PCRA petitioner cannot assert 

claims of PCRA counsel ineffectiveness for the first time on appeal.” 
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Commonwealth v. Henkel, 90 A.3d 16, 28 (Pa. Super. 2014).10 

Therefore, the only proper way for Wakeel to preserve his claim of PCRA 

counsel’s ineffectiveness was by filing a PCRA pleading. In the court’s 

November 8, 2013, order, it prevented Wakeel from doing so. Accordingly, 

the court erred in precluding Wakeel from filing an amended PCRA petition.11

Consequently, we are constrained to reverse the PCRA court’s 

November 12, 2013, order denying Wakeel’s PCRA petition. We remand 

with instructions to the PCRA court to conduct a proper Grazier hearing, and 

to allow Wakeel permission to file an amended PCRA petition, either pro se

or with the assistance of privately retained counsel, so that Wakeel may 

properly preserve his claim of appointed PCRA counsel’s ineffectiveness. If 

Wakeel chooses to retain his private PCRA counsel, we also direct counsel to 

enter an appearance with the PCRA court. Because the remand may change 

the content and character of this appeal substantially, we relinquish 

jurisdiction.

Order reversed. Case remanded. Jurisdiction relinquished.

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10

 See also Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super. 

2014) (finding a petitioner cannot raise ineffective assistance of PCRA 

counsel for first time in Pa.R.A.P. 1925(b) statement).

11

 While Wakeel requested that he be able to file his own brief, we can infer, 

based on his pro se status, that he actually meant an amended petition.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015