J-S29013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

VINCENT WESLEY HALLMAN

                            Appellant                 No. 2882 EDA 2016


                   Appeal from the PCRA Order June 25, 2015
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0007765-2006


BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                             FILED APRIL 21, 2017

        Vincent Wesley Hallman appeals from the trial court’s order denying

his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-46 (“PCRA”). After careful review, we affirm.

        In 2007, the trial court sentenced Hallman to an aggregate term of

imprisonment of twenty-and-one-half to forty-four years’ imprisonment,

after a jury convicted him of multiple offenses stemming from a robbery.1

Hallman filed a direct appeal to this court, which affirmed his judgment of

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   Hallman was convicted of four counts of robbery, 18 Pa.C.S.A. §
3701(a)(1)(ii) and (iv); two counts of aggravated assault, 18 Pa.C.S.A. §
2702(a)(1) and (4); one count of theft, 18 Pa.C.S.A. § 3903; one count of
possessing a firearm without a license, 18 Pa.C.S.A. § 6105; and one count
of resisting arrest, 18 Pa.C.S.A. § 5104.
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sentence on September 25, 2008. Commonwealth v. Hallman, 963 A.2d

566 (Pa. Super 2008) (Table).      Hallman filed a petition for allowance of

appeal, which our Supreme Court denied on April 1, 2009. Commonwealth

v. Hallman, 968 A.2d 232 (Pa. 2009) (Table).

      On January 20, 2010, Hallman filed a timely pro se PCRA petition

(“Petition 1”). On October 11, 2011, Hallman filed an amendment to his pro

se PCRA petition (“Petition 2”).      On September 15, 2014, Hallman’s

appointed counsel filed an amended PCRA petition (“Petition 3”), which

raised the following two issues:

   1. Trial counsel was ineffective for failing to object to the jury
      instruction on accomplice liability.

   2. Trial counsel was ineffective for failing to object to the
      prosecutor’s initialing of the amended bills.

Brief of Appellee, at 3.

      On November 28, 2014, having received an answer to Petition 3 from

the Commonwealth, the PCRA court held a hearing.             At the hearing,

appointed counsel was present, but Hallman requested to proceed pro se in

order to pursue claims raised in Petition 1 and Petition 2 that appointed

counsel believed were frivolous.

      Following a colloquy conducted by the Commonwealth to establish the

validity of Hallman’s waiver of counsel, The Honorable R. Stephen Barrett

found Hallman “knowingly, intelligently, and voluntarily relinquished his right

to counsel” pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.



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1988).     N.T. PCRA Hearing, 11/28/14, at 13.    Appointed counsel acted as

standby counsel during the hearing.

      Prior to argument, the Commonwealth objected on the grounds they

were only prepared to argue the issues Hallman raised in Petition 3.          In

response, Judge Barrett presented Hallman with two options:            request a

continuance to file an amended pro se petition raising all of the claims

asserted in Petition 1, Petition 2 and Petition 3, or proceed only on the issues

raised in Petition 3.   After consulting with counsel, Hallman opted for the

latter, and proceeded pro se only on the issues raised in Petition 3.

Following argument and subsequent briefing on those issues, Judge Barrett

denied Hallman’s petition on June 30, 2015.

      On July 15, 2015, Hallman filed a timely notice of appeal, followed by

a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal.    On January 13, 2016, the PCRA court issued its Rule 1925(a)

opinion.     On appeal, Hallman raises the following issue for our review:

“Was [Hallman] completely denied the right to counsel on [his] first PCRA

petition by the court?” Brief of Appellant, at 4. Specifically, Hallman avers

the PCRA court should have reinstated counsel after the court limited

argument to the issues in Petition 3, which appointed counsel had prepared.

      A PCRA petitioner has a constitutional right to represent himself in a

post-conviction proceeding. Grazier, 713 A.2d at 82. However, the court is

required to make an on-the-record determination that petitioner knowingly,

intelligently, and voluntarily waived his right to counsel.      Id.     Once a

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petitioner has made a competent waiver of his right to counsel, that waiver

remains in effect absent a substantial change in circumstance.           See

Commonwealth v. Phillips, 141 A.3d 512, 521 (Pa. Super. 2016).

      To ensure waiver of counsel is knowing, intelligent and voluntary,

petitioner must be colloquied on the following: (1) that the defendant

understands that he or she has the right to be represented by counsel, and

the right to have counsel appointed if the defendant is indigent; (2) 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; (3) 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 (4) that the defendant understands that he or she 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. Commonwealth v.

Robinson, 970 A.2d 455, 459 (Pa. Super. 2009).

      Here, the Commonwealth engaged in the following colloquy with

Hallman:

      Q. Are you aware that you have the right to be represented by
      counsel during the pendency of your [PCRA] petition?

      A. Yes, sir.




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     Q. Are you aware if you choose to take advantage of that right,
     Mr. Tone [appointed counsel] will continue his appointment to
     represent you in regards to this PCRA hearing?

     A. (No response.)

     Q. I’ll say it again.

     A. Yeah.

     Q. If you decide that you wanted to proceed with counsel, Mr.
     Tone can continue to represent you?

     A. Yes, sir.

     Q. Are you aware, then, if you choose to take advantage of your
     right to counsel, you do not have to pay Mr. Tone?

     A. Yes, sir.

     Q. Do you understand that evidentiary hearings are governed by
     strict evidentiary rules and rules of criminal procedure?

     A. Yes, sir.

     Q. Are you aware that if you choose to go forward without an
     attorney, you will still be bound by the normal rules of criminal
     procedure and evidentiary rules?

     A. Yes, sir.

     Q. Are you aware that if you do not comply with those rules, you
     may lose your opportunity to elicit pertinent, relevant evidence?

     A. Yes, sir.

     Q. And do you understand if you were represented by an
     attorney during the hearing, he would be familiar with the rules
     of criminal procedure and rules of evidence?

     A. Yes, sir.

     Q. Knowing all this, is it still your intention to proceed without
     counsel?

     A. Yes, sir.




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N.T. PCRA Hearing, 11/28/14 at 10-13.       Based on the forgoing, the PCRA

court, pursuant to Grazier, properly found Hallman “knowingly, intelligently,

and voluntarily relinquished his right to counsel,” and allowed him to

proceed pro se. Id. at 13.

      Moreover, the record does not suggest Hallman asked the PCRA court

to reinstate appointed counsel and/or sought to limit his waiver of counsel

exclusively to argument in support of Petition 1 and Petition 2.         See

Phillips, 141 A.3d at 521 (waiver remained in effect where there was no

substantial change in circumstances, no evidence that waiver of counsel was

limited, and/or no request for reappointment of counsel). In fact, when

presented with an opportunity to file a fourth petition, Hallman, after

consulting with standby counsel, declined. Accordingly, we find the PCRA

court did not deprive Hallman of his right to counsel.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




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