J-A30045-17

                                 2018 PA Super 278



 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 CHARLES WAYNE POU                         :
                                           :
                     Appellant             :    No. 95 WDA 2017

                Appeal from the PCRA Order January 9, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0002742-2013


BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:                                FILED OCTOBER 11, 2018

      Charles Wayne Pou appeals from the order denying his PCRA petition.

We affirm.

      We previously set forth the facts and procedural history underlying

Appellant’s conviction in our decision denying relief on direct appeal, which we

adopt herein:

      Following a jury trial, appellant was convicted of burglary,
      robbery, criminal conspiracy, four counts of recklessly
      endangering another person, possession of an instrument of
      crime, theft by unlawful taking, two counts of unlawful restraint,
      and four counts of terroristic threats. The Commonwealth filed a
      notice of intent to seek the mandatory minimum sentence and
      appellant filed a pro se motion in objection. On February 21,
      2014, appellant began representing himself. On April 2, 2014,
      due to appellant’s prior conviction for a crime of violence, the court
      imposed three consecutive mandatory minimum sentences of 10
      to 20 years for appellant’s convictions of robbery, conspiracy to
      commit robbery, and burglary. These three sentences were to be
      served consecutively to the sentence appellant was serving at
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      Docket Number 3261 of 1998. The court imposed no further
      penalty at the remaining counts.

      On April 7, 2014, appellant filed a pro se post-sentence motion to
      modify sentence and a pro se motion pursuant to Pa.R.Crim.P.
      720 for a new trial. A supplemental post-sentence motion was
      filed on April 11, 2014, seeking an arrest of judgment and the
      dismissal of all charges. On April 14, 2014, appellant requested
      the appointment of counsel. On April 16, 2014, the trial court
      denied appellant’s post-sentence motions. Thereafter, on April
      24, 2014, appellant filed a pro se notice of appeal. On April 29,
      2014, the trial court appointed counsel for purposes of appeal.

Commonwealth v. Pou, 2015 WL 6165190 at *1 (Pa.Super. 2015) (citations

and footnote omitted; alterations in original). Appellant’s appeal was denied,

and he did not seek further review with our Supreme Court.

      Appellant thereafter timely sought PCRA relief, which was denied

without a hearing. On appeal Appellant raised one issue: “[Whether] direct

appeal counsel was constitutionally deficient for failing to argue on appeal that

the trial court erred in allowing appellant to waive his constitutional right to

counsel where the court failed to conduct a full and complete oral waiver of

counsel colloquy prior to granting appellant permission to proceed pro se[?]”

Commonwealth v. Pou, 2016 WL 1436327 at *3 (Pa.Super. 2016)

(unpublished memorandum). After review of the oral and written colloquies,

we determined that they were not compliant with the waiver of counsel

procedure set forth by Pa.R.Crim.P. 121, relinquished jurisdiction, and

remanded for further proceedings:

      Here, the trial court conducted an oral colloquy in which Appellant
      indicated that he knew the nature and the elements of the charges
      against him, and that he was aware of the possible range of

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       sentences and maximum possible penalties against him.
       However, the trial court did not advise Appellant of the specific
       statutory maximum sentences for his crimes in the oral or written
       colloquy. Further, the court did not inquire about his age,
       educational background or basic comprehension skills. Thus, the
       court failed to meet the minimum requirements of Rule
       121.

Id. at *5 (emphasis added).1

       We thus determined there was arguable merit to the claim, and

remanded for an evidentiary hearing to determine whether counsel had a

reasonable strategic basis for failing to raise that claim, and whether that

failure prejudiced Appellant. Id. at *7. The PCRA court held the hearing as

required, and determined that counsel had a reasonable basis for foregoing

that claim. Appellant filed a notice of appeal and the trial court did not order

a new Pa.R.A.P. 1925(b) statement. Appellant raises one issue for our review:

       Did the PCRA court err[ ] by not granting a new trial after this
       Court remanded for an evidentiary hearing to determine whether
       or not direct appeal counsel had a reasonable basis for failing to
       challenge the defective waiver of counsel colloquy that deprived
       Appellant of his right to counsel?

Appellant’s brief at 3.




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1  Pursuant to Pa.R.Crim.P. 121(A)(2), a trial judge is not permitted to permit
a defendant to proceed pro se without first ensuring that the waiver of the
right to counsel is knowing, voluntary, and intelligent. The Rule delineates
certain topics that must be addressed, including, as relevant herein, whether
“the defendant is aware of the permissible range of sentences and/or fines for
the offenses charged[.]” Pa.R.Crim.P. 121(A)(2)(c).



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      Our task is to assess the remaining prongs of Appellant’s ineffectiveness

claim in light of the testimony produced at the evidentiary hearing.       “Our

standard of review for issues arising from the denial of PCRA relief is well-

settled. We must determine whether the PCRA court’s ruling is supported by

the record and free of legal error.” Commonwealth v. Spotz, 171 A.3d 675,

678 (Pa. 2017) (citing Commonwealth v. Washington, 927 A.2d 586, 593

(Pa. 2007)). In examining a claim of counsel ineffectiveness, we apply the

following principles:

      It is well-established that counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such deficiency
      prejudiced him. To prevail on an ineffectiveness claim, the
      petitioner has the burden to prove that (1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel’s deficient performance.
      The failure to satisfy any one of the prongs will cause the entire
      claim to fail.

Commonwealth v. Smith, 181 A.3d 1168, 1174–75 (Pa.Super. 2018)

(quoting Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super.

2016)).

      At the evidentiary hearing, direct appeal counsel Tina Fryling, Esquire,

testified and explained that Appellant wrote a letter asking her to raise some

issues, which did not mention the validity of the waiver of counsel colloquy.

N.T., 12/6/16, at 6.    With respect to her independent review of the case,

Attorney Fryling stated that the colloquy “was thorough. It went through the


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entire checklist that the District Attorney’s office uses in every case.     And

[Appellant] seemed intelligent and as though he wanted to represent himself

at trial.” Id. at 10. Counsel was asked, “And did the colloquy conform with

the Rule 121 as you understood it?” She replied, “I believe that it did.” Id.

at 11. Later, the following exchange occurred:

      Q. Your reason for – is it fair to say your reason for not including
      the ineffective – or I’m sorry, the ineffective waiver of counsel as
      an appellate issue because you didn’t believe that was an actual
      issue to appeal?

      A. That is correct.

      Q. But if you – in researching that issue it had come to light that
      was a potential issue that would have won on appeal, would you
      have put that in your appeal?

Id. at 15.

      The Commonwealth objected before the answer, and the PCRA court

sustained the objection. The PCRA court’s order explained its conclusion that

Attorney Fryling had a reasonable strategic basis for declining to pursue the

defective colloquy issue on the grounds that nothing in the record indicated

that Appellant was unaware of the specific statutory maximums for the

charged crimes.

      Attorney Fryling thoroughly reviewed the entire transcript, pre-
      trial motions, correspondence, pre-sentence report and all other
      matters pertinent to the Defendant’s case. She would have been
      aware of his age, background and level of comprehension from
      the criminal complaint, pre-sentence report, correspondence with
      the Defendant and to prior counsel, his pro se motions and
      interaction with the Court.




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       There is nothing in the record Attorney Fryling reviewed to indicate
       the Defendant did not understand, or could not comprehend the
       matters contained in the colloquy with the Court. And at no time
       has or did the Defendant ever indicate or communicate to Attorney
       Fryling that he did not know the statutory penalties for his crimes
       or that had he known them he would not have chosen to represent
       himself. Nor has the Defendant ever set forth that he did not
       understand or comprehend the nature of his waiver of counsel.

       Under oath the Defendant orally and in writing stated that he
       knew the possible maximum sentences for the crimes with which
       he was charged. He should not now be rewarded with a new trial
       for lying to the Commonwealth and the Court, and, pursuant to
       PCRA law, Attorney Fryling clearly acted reasonably under all of
       the circumstances in not raising this issue and the Defendant has
       not proven otherwise.

Order, 1/9/17, at 1-2 (emphasis in original).

       We conclude that the order must be affirmed, but we disagree with the

PCRA court’s conclusion that appellate counsel had a reasonable strategic

basis for failing to raise the claim that Appellant’s waiver of counsel colloquy

was deficient.     Instead, we find that Appellant did not establish prejudice

pursuant to Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), a

conclusion that is strengthened in light of Weaver v. Massachusetts, 137

S.Ct. 1899 (2017), as explained at length infra.2 We therefore affirm on that

alternative basis. “[W]e may affirm the decision of the PCRA court if there is

any basis on the record . . . this is so even if we rely on a different basis in

our decision to affirm.”      Commonwealth v. Wiley, 966 A.2d 1153, 1157



____________________________________________


2 Pennsylvania uses the Pierce framework, but we apply federal precedent to
the prejudice inquiry. Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999).


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(Pa.Super. 2009) (quoting Commonwealth v. Blackwell, 936 A.2d 497, 499

(Pa.Super. 2007)).

         In our prior memorandum, we did not explicitly address Pierce

prejudice; instead, we noted our belief that, if counsel had presented the

deficient colloquy claim on direct appeal, Appellant would have received a new

trial:

         Here, if direct appeal counsel had raised the issue of the trial
         court’s error of failing to conduct a complete oral colloquy before
         allowing Appellant to represent himself, this Court would have
         vacated his judgment of sentence and allowed him to proceed
         to a new trial with counsel or with a proper colloquy.

Pou, 2016 WL 1436327 at *6 (emphases added).

         Accordingly, our prior decision opined that Appellant would have

received a new trial regardless of whether he actually lacked understanding

of the statutory maximums; the fact that the colloquy was defective on that

score was sufficient. The failure to raise that claim was doubtlessly prejudicial,

but as we shall explain it does not rise to the level of Pierce prejudice.

         We now examine the PCRA court’s conclusion that counsel had a

reasonable strategic basis for foregoing the colloquy claim. That facet of the

ineffectiveness test is designed to insulate reasonable strategic decisions from

post-trial hindsight.

         The availability of intrusive post-trial inquiry into attorney
         performance or of detailed guidelines for its evaluation would
         encourage the proliferation of ineffectiveness challenges. Criminal
         trials resolved unfavorably to the defendant would increasingly
         come to be followed by a second trial, this one of counsel’s
         unsuccessful defense.        Counsel’s performance and even

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      willingness to serve could be adversely affected.      Intensive
      scrutiny of counsel and rigid requirements for acceptable
      assistance could dampen the ardor and impair the independence
      of defense counsel, discourage the acceptance of assigned cases,
      and undermine the trust between attorney and client.

      Thus, a court deciding an actual ineffectiveness claim must judge
      the reasonableness of counsel’s challenged conduct on the facts
      of the particular case, viewed as of the time of counsel’s conduct.
      A convicted defendant making a claim of ineffective assistance
      must identify the acts or omissions of counsel that are alleged not
      to have been the result of reasonable professional judgment. The
      court must then determine whether, in light of all the
      circumstances, the identified acts or omissions were outside the
      wide range of professionally competent assistance.

Strickland v. Washington, 466 U.S. 668, 690 (1984).

      As it pertains to appellate counsel’s strategic decisions, counsel is

permitted to winnow out weaker claims in favor of pursuing claims that

counsel believes offer a better chance of relief.      That legal principle is

effectively an embodiment of the oft-quoted observation by the Honorable

Ruggero J. Aldisert of the United States Court of Appeals for the Third Circuit:

      With a decade and a half of federal appellate court experience
      behind me, I can say that even when we reverse a trial court it is
      rare that a brief successfully demonstrates that the trial court
      committed more than one or two reversible errors. I have said in
      open court that when I read an appellant’s brief that contains ten
      or twelve points, a presumption arises that there is no merit to
      any of them . . . [and] it is [this] presumption . . . that reduces
      the effectiveness of appellate advocacy.

Commonwealth v. Robinson, 864 A.2d 460, 480, n.28 (Pa. 2004) (quoting

Aldisert, “The Appellate Bar: Professional Competence and Professional

Responsibility–A View From the Jaundiced Eye of the Appellate Judge,” 11

Cap. U.L. Rev. 445, 458 (1982) (emphasis and alterations in original)). As

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our Supreme Court has stated, this means counsel can forego even arguably

meritorious claims:

       It is true that arguably meritorious claims may be omitted in favor
       of pursuing claims which, in the exercise of appellate counsel’s
       objectively reasonable professional judgment, offer a greater
       prospect of securing relief. Appellate counsel need not (and
       should not) raise every nonfrivolous claim, but rather may select
       from among them in order to maximize the likelihood of success
       on appeal.

Commonwealth v. Williams, 141 A.3d 440, 471 (Pa. 2016) (cleaned up).

       However, the caveat to that point is that the strategic choices must be

informed. “[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations

on investigation.” Strickland, supra at 690-91. Thus, failing to raise a claim

due to misapprehension of the law applicable to that claim cannot be

considered a strategic choice.

       Presently, we find that the PCRA court failed to adequately address the

fact that the law would have afforded relief. By focusing on whether counsel

could reasonably conclude that Appellant actually understood the maximum

penalties, the PCRA court misapplied the reasonable strategic basis test. 3 The

____________________________________________


3  For instance, suppose that a defendant gives a confession to a crime, which
trial counsel fails to move to suppress. A review of the record demonstrates
that a motion to suppress under Miranda v. Arizona, 384 U.S. 436 (1966),



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law applicable to Rule 121 challenges would not have required that showing

on direct appeal, and the evidentiary hearing demonstrates that counsel was

unaware of that point. Counsel testified that she believed that the colloquy

was valid, which, as our prior memorandum explained, was an incorrect

conclusion. Therefore, when appellate counsel declined to pursue that claim,

that choice was not a reasonable strategic decision since it was not adequately

informed.

       In Commonwealth v. Hickman, 799 A.2d 136 (Pa.Super. 2002), this

Court determined that counsel ineffectively advised a defendant to accept a

plea in exchange for a term of years sentence.         Counsel informed the

defendant that he would be eligible for parole after two years pursuant to the

State Motivational Boot Camp program, 61 P.S. §§ 1121–1129. That advice

was objectively incorrect since Hickman was statutorily ineligible for that

program.     “[B]ased on an ignorance of relevant sentencing law, counsel’s

advice was legally unsound and devoid of any reasonable basis designed to

effectuate Appellant’s interests.” Id. at 141. The same point applies herein.


____________________________________________


clearly would have succeeded. The record also reveals that the defendant is
a former police officer and knew the Miranda warnings by heart.

We do not think that this Court would hold that trial counsel could reasonably
conclude that seeking suppression of the confession was unnecessary since
the defendant subjectively knew his Miranda rights. We think that, for
purposes of reasonable strategic basis analysis, the viability of the motion to
suppress would be the relevant focus.



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Appellate counsel believed that the colloquy was valid, but that conclusion was

based on ignorance of the applicable precedents.4

       We nevertheless affirm the denial of PCRA relief, as we conclude that

Appellant did not establish prejudice under the standard articulated by Pierce.

There is no doubt that Appellant was prejudiced by appellate counsel’s failure

in that he would have received a new trial on direct appeal. Yet the rationale

for granting relief on direct appeal without any showing of prejudice does not

necessarily warrant the same result in the PCRA context.

       In Weaver, supra, the United States Supreme Court established that

the ineffective failure to raise a claim of structural error on direct appeal, which

would result in a new trial without any showing of prejudice, does not

necessarily warrant the same result on collateral review.         That same logic

perforce applies to claims, such as this one, that are not structural errors.

With respect to structural errors, Weaver explained how a court should apply

the prejudice prong analysis on collateral review:

       During petitioner’s trial on state criminal charges, the courtroom
       was occupied by potential jurors and closed to the public for two
       days of the jury selection process. Defense counsel neither
____________________________________________


4 Moreover, the issues direct appeal counsel pursued were clearly weaker than
the defective colloquy claim. “[W]e will conclude that counsel's chosen
strategy lacked a reasonable basis only if the petitioner proves that the
alternative strategy not selected offered a potential for success substantially
greater than the course actually pursued.” Commonwealth v. Busanet, 54
A.3d 35, 46 (Pa. 2012) (citation omitted). To the extent that the reasonable
strategic basis prong would permit counsel to forego even a winning claim,
the claims advanced in the alternative would have to be as likely to succeed.


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      objected to the closure at trial nor raised the issue on direct
      review. And the case comes to the Court on the assumption that,
      in failing to object, defense counsel provided ineffective
      assistance.

      In the direct review context, the underlying constitutional
      violation—the courtroom closure—has been treated by this Court
      as a structural error, i.e., an error entitling the defendant to
      automatic reversal without any inquiry into prejudice.          The
      question is whether invalidation of the conviction is required here
      as well, or if the prejudice inquiry is altered when the structural
      error is raised in the context of an ineffective-assistance-of-
      counsel claim.

Id. at 1905.

      The High Court ultimately concluded that Weaver was not entitled to a

new trial on collateral review, even though he would have received that relief

if the same structural error claim had been raised on direct review.        With

respect to the prejudice prong, the Court stated:

      The question then becomes what showing is necessary when the
      defendant does not preserve a structural error on direct review
      but raises it later in the context of an ineffective-assistance-of-
      counsel claim.     To obtain relief on the basis of ineffective
      assistance of counsel, the defendant as a general rule bears the
      burden to meet two standards. First, the defendant must show
      deficient performance—that the attorney’s error was so serious
      that counsel was not functioning as the ‘counsel’ guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the attorney’s error prejudiced the defense.

            ....

      That said, the concept of prejudice is defined in different ways
      depending on the context in which it appears. In the ordinary
      Strickland case, prejudice means a reasonable probability that,
      but for counsel’s unprofessional errors, the result of the
      proceeding would have been different. But the Strickland Court
      cautioned that the prejudice inquiry is not meant to be applied in
      a mechanical fashion.      For when a court is evaluating an

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     ineffective-assistance claim, the ultimate inquiry must
     concentrate on the fundamental fairness of the proceeding.
     Petitioner therefore argues that under a proper interpretation of
     Strickland, even if there is no showing of a reasonable probability
     of a different outcome, relief still must be granted if the convicted
     person shows that attorney errors rendered the trial
     fundamentally unfair. For the analytical purposes of this case, the
     Court will assume that petitioner’s interpretation of Strickland is
     the correct one. In light of the Court’s ultimate holding, however,
     the Court need not decide that question here.

     As explained above, not every public-trial violation will in fact lead
     to a fundamentally unfair trial. Nor can it be said that the failure
     to object to a public-trial violation always deprives the defendant
     of a reasonable probability of a different outcome. Thus, when
     a defendant raises a public-trial violation via an ineffective-
     assistance-of-counsel claim, Strickland prejudice is not
     shown automatically. Instead, the burden is on the defendant
     to show either a reasonable probability of a different outcome in
     his or her case or, as the Court has assumed for these purposes,
     to show that the particular public-trial violation was so serious as
     to render his or her trial fundamentally unfair.

Id. at 1911 (emphasis added, cleaned up).

     Weaver rejects the notion that the prejudice inquiry on collateral review

is simply whether Appellant would have received relief on direct appeal.

Instead, he must show prejudice in the Strickland sense. Weaver applied

the “reasonable probability of a different outcome” test to the trial

proceedings, not the direct appeal proceeding, as follows:

     Although the case comes on the assumption that petitioner has
     shown deficient performance by counsel, he has not shown
     prejudice in the ordinary sense, i.e., a reasonable probability that
     the jury would not have convicted him if his attorney had objected
     to the closure.

     It is of course possible that potential jurors might have behaved
     differently if petitioner’s family had been present. And it is true
     that the presence of the public might have had some bearing on

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       juror reaction. But here petitioner offered no “evidence or legal
       argument establishing prejudice” in the sense of a reasonable
       probability of a different outcome but for counsel’s failure to
       object.

Id. at 1912–13.

       We now apply Strickland prejudice as contemplated by Weaver and

our precedents.        Appellant was not required to establish a reasonable

probability that the outcome of the trial would have been different had he

been represented by counsel, for that test is impossible to apply.5 Moreover,

asking whether an attorney would have made a difference assumes that the

waiver of counsel was invalid.             If Appellant’s waiver of counsel were

constitutionally deficient, as opposed to technically deficient under the Rule,

we would agree that the error would be structural as set forth by Weaver.

For the following reasons, we hold that for the discrete claim of ineffective

assistance of appellate counsel for failing to challenge a defective Rule 121

colloquy, the prejudice showing on collateral review requires a showing that

the waiver of counsel was constitutionally deficient.




____________________________________________


5 Weaver explained that there are multiple rationales for deeming a particular
error structural. As applicable herein, one rationale was that some errors
“always [result] in fundamental unfairness. For example, if an indigent
defendant is denied an attorney[.]”           Weaver, supra at 1908.          A
constitutionally invalid waiver of the right to counsel would effectively result
in the denial of counsel, and it “would be futile for the government to try to
show harmlessness,” id., on direct appeal. Thus, a constitutionally invalid
waiver of counsel would qualify as a structural error.


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      In Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011), our Supreme

Court reviewed the denial of a PCRA petition raising, inter alia, a claim that

his “waiver of the right to counsel was not voluntary, knowing, or intelligent

. . . and that [trial counsel] was ineffective for failing to object to the trial

court's allegedly inadequate colloquy[.]” Id. at 262. Our High Court noted

that the claim the waiver was not “voluntary, knowing, or intelligent”

implicated the constitutional standard of the waiver of the right to counsel, as

set forth in Faretta v. California, 422 U.S. 806 (1975). Spotz also noted

that the Rules of Criminal Procedure directed the trial court to explore specific

areas of inquiry. Significantly, Spotz observed that “Although our rules set

forth specific requirements for a waiver colloquy, we have been careful to

distinguish between a colloquy and the right that it was designed to protect[.]”

Id. at 263. Thus:

      [W]hen a petitioner claims ineffective assistance of counsel based
      on a failure to object to an allegedly defective waiver colloquy, the
      claim must be analyzed like any other ineffectiveness claim. The
      petitioner cannot prevail merely by establishing that the waiver
      colloquy was indeed defective in some way. Rather, the petitioner
      must prove that, because of counsel's ineffectiveness, he waived
      the constitutional right at issue unknowingly or involuntarily, and
      that he was prejudiced. To establish prejudice, the petitioner
      must demonstrate a reasonable probability that but for counsel's
      ineffectiveness, he would not have waived the right at issue.

Id. at 263–64 (citation omitted).

      Presently, we are not dealing with the claim that trial counsel was

ineffective for failing to object during the colloquy proceeding, as in Spotz,

but rather that direct appeal counsel was ineffective for failing to challenge

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the defective colloquy.        Nonetheless, Spotz clearly disavows the per se

prejudice approach alluded to in our prior memorandum. The fact that the

colloquy may have been technically defective does not warrant a new trial.

          As in Spotz, the key issue in this case is that the defective waiver of

counsel based on failure to comply with Rule 121 is not equivalent to a finding

that the waiver was constitutionally unsound. Indeed, the fact that Weaver

holds that ineffective failures to raise structural error claims does not

automatically entitle a defendant to relief on collateral review a fortiori means

that lesser errors, such as the colloquy issue herein, do not warrant automatic

relief.

          To buttress our conclusion that Appellant must show a constitutionally

defective colloquy, we now briefly address the law surrounding review of

waiver of counsel colloquies on direct appeal. The applicable principles were

discussed by our Supreme Court as follows:

          Before a defendant is permitted to proceed pro se, however, the
          defendant must first demonstrate that he knowingly, voluntarily
          and intelligently waives his constitutional right to the assistance
          of counsel. If the trial court finds after a probing colloquy that the
          defendant’s putative waiver was not knowingly, voluntarily or
          intelligently given, it may deny the defendant’s right to proceed
          pro se. The “probing colloquy” standard requires Pennsylvania
          trial courts to make a searching and formal inquiry into the
          questions of (1) whether the defendant is aware of his right to
          counsel or not and (2) whether the defendant is aware of the
          consequences of waiving that right or not. See also Pa.R.Crim.P.
          318(c) (when the defendant seeks to waive the right to counsel
          after the preliminary hearing, the judge shall ascertain from the
          defendant, on the record, whether the waiver was made
          knowingly, voluntarily and intelligently). Specifically, the court
          must inquire whether or not: (1) the defendant understands that

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      he has the right to be represented by counsel, and the right to
      have free counsel appointed if he is indigent; (2) the defendant
      understands the nature of the charges against him and the
      elements of each of those charges; (3) the defendant is aware of
      the permissible range of sentences and/or fines for the offenses
      charged; (4) the defendant understands that if he waives the right
      to counsel he will still be bound by all the normal rules of
      procedure and that counsel would be familiar with these rules; (5)
      defendant understands that there are possible defenses to these
      charges which counsel might be aware of, and if these defenses
      are not raised at trial, they may be lost permanently; and (6) 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, the
      objection to these errors may be lost permanently.

Commonwealth v. Starr, 664 A.2d 1326, 1335 (Pa. 1995) (some citations

omitted).

      Starr described the “probing colloquy” standard that Pennsylvania trial

courts must make with reference to Rule of Criminal Procedure 318 (now

codified at Rule 121).    Starr did not hold that the Rule sets forth the

constitutional standard for waiving the right to counsel.      In fact, Starr

recognized that “a waiver of the right to counsel may be considered ‘knowing

and intelligent’ based simply on a finding that the defendant in fact

understands both the significance and consequences of the decision to waive

counsel.” Id. at 1336 (quotation marks and citations omitted). Starr cited,

inter alia, Faretta, supra, wherein the United States Supreme Court

established that a defendant has the constitutional right to represent himself,

and observed the following with respect to waiver of the right to counsel:




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      When an accused manages his own defense, he relinquishes, as a
      purely factual matter, many of the traditional benefits associated
      with the right to counsel. For this reason, in order to represent
      himself, the accused must “knowingly and intelligently” forgo
      those relinquished benefits. Although a defendant need not
      himself have the skill and experience of a lawyer in order
      competently and intelligently to choose self-representation, he
      should be made aware of the dangers and disadvantages of self-
      representation, so that the record will establish that “he knows
      what he is doing and his choice is made with eyes open.”

Id. at 835 (citations omitted).

      Thus, Rule 121 goes farther than what the United States Constitution

requires. Accordingly, a technically-deficient waiver of counsel colloquy is not

the same as a constitutionally deficient waiver of counsel. See e.g. Lopez v.

Thompson, 202 F.3d 1110, 1117 (9th Cir. 2000) (“Neither the Constitution

nor Faretta compels the district court to engage in a specific colloquy with

the defendant.”).

      Herein, Appellant does not claim that the waiver of counsel fell short of

what is contemplated by Faretta. His only complaint is that the waiver of

counsel colloquy was defective pursuant to the Rule.        That distinction is

crucial, and warrants the denial of a new trial on collateral review despite the

fact that the exact same claim would have resulted in a new trial on direct

appeal without that showing.

      For the sake of completeness, we note that our review of the record

establishes that the waiver of counsel was not constitutionally deficient. Our

prior decision quoted the oral colloquy, which reveals, inter alia, that

Appellant: was informed he would be required to follow all rules of procedure

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and evidence; his appointed counsel would be more familiar with those

matters; there may be defenses that the attorney would be aware of; and his

failure to object at the appropriate times would result in waiver. The court

also confirmed that no one influenced him to make that decision. Indeed, the

record shows that Appellant, who had been represented by counsel and filed

premature allegations of ineffective assistance of counsel, was simply

dissatisfied with his attorney and wished to represent himself for that reason.

In fact, he explained that his unhappiness prompted his waiver:

      [APPELLANT]: Well, you know, just to make sure it’s on the
      record, the reason I want to represent myself and not go with an
      attorney—with this particular attorney, Mr. Celland (sic) is, you
      know, he hasn’t—he spoke to me one time and never even talk—
      spoke to me about a defense in my case, you know. He never
      even—he never done any of that, you know. He didn’t do what I
      asked him to do at the preliminary hearing which was, you know,
      ask for a pre-trial, pre-hearing lineup. I was never identified by
      the victim. He came—

      THE COURT: We’re not going to go into the primary [sic] hearing.

      [APPELLANT]: Oh, okay. Well, that’s the reason why I want to
      represent myself, because I believe in my heart that I could do a
      better job myself.

Pou, 2016 WL 1436327 at *2-3 (quoting transcript).

      Appellant was “made aware of the dangers and disadvantages of self-

representation,” and our review of the colloquy establishes that he knew what

he was doing and “his choice [was] made with eyes wide open.” Faretta,

supra at 835. Additionally, Appellant acknowledged that he was in fact aware

of the maximum penalties:


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       [PROSECUTOR]: Do you know the nature—I’m going to mark
       down yes. Are you aware of the possible range of sentences,
       including fines and the maximum possible penalty that can be
       imposed if you’re found guilty or plead guilty?

       [APPELLANT]: Yes.

Id. at *2 (quoting transcript).

       We recognize that the colloquy exists to make sure that the defendant’s

understanding is actually correct and is prophylactic in nature.6     However,

assuming arguendo that a constitutionally valid waiver of counsel required

explicit knowledge of the maximum penalties, Appellant informed the trial

court he was aware of those penalties. If Appellant was unsure or needed

more information, all he had to do was say so. Relatedly, we deem significant

Weaver’s explanation for why it is permissible to have different results at

different stages of the appellate process:

       [W]hen state or federal courts adjudicate errors objected to during
       trial and then raised on direct review, the systemic costs of
       remedying the error are diminished to some extent. That is
       because, if a new trial is ordered on direct review, there may be a
       reasonable chance that not too much time will have elapsed for
       witness memories still to be accurate and physical evidence not to
       be lost. There are also advantages of direct judicial supervision.
       Reviewing courts, in the regular course of the appellate process,
       can give instruction to the trial courts in a familiar context that
       allows for elaboration of the relevant principles based on review
____________________________________________


6 For this reason, we disagree with the PCRA court’s conclusion that Appellant
lied when he stated that he knew the applicable statutory maximums. A
defendant who mistakenly believes that the maximum penalty for a felony of
the third degree is two years would answer “yes” when asked if he knew the
maximum penalty for that crime. That answer would be incorrect, not
untruthful. The PCRA court failed to consider the possibility that Appellant
believed he was aware of the maximums.

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      of an adequate record. For instance, in this case, the factors and
      circumstances that might justify a temporary closure are best
      considered in the regular appellate process and not in the context
      of a later proceeding, with its added time delays.

Weaver, supra at 1912.

      Whatever may be said of the wisdom of a bright-line rule granting relief

for technical violations of Rule 121 on direct appeal, but see Commonwealth

v. Brazil, 701 A.2d 216, 219 (Pa. 1997) (Castille, J., dissenting) (opining that

a totality of the circumstances test should apply to determine whether a

waiver of counsel was valid), the prophylactic purpose of ensuring strict

compliance with Rule 121 dissipates to a great degree on collateral review. At

this point in time, finality considerations justify applying a higher standard of

prejudice than what would have applied on direct review.         Of note, when

addressing this type of claim on direct appeal, it is the Commonwealth’s

burden to establish that the waiver of counsel was valid.          In collateral

proceedings, however, it is the petitioner who bears the burden to establish

that he was prejudiced. Therefore, Appellant must show something more than

a technical defect, i.e., a constitutionally defective waiver of his right to

counsel. Since he has failed to do so, we find that Appellant failed to establish

prejudice and therefore affirm the order on that alternative basis.

      Order affirmed.

      Judge Stabile joins the opinion.

      President Judge Emeritus Ford Elliott files a concurring opinion.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2018




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