J-S51035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    WESLEY WILLIAMS,                           :
                                               :
                      Appellant                :   No. 1429 EDA 2016

             Appeal from the Judgment of Sentence January 7, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006572-2015,
                             CP-51-CR-0006573-2015


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED AUGUST 28, 2017

        Appellant, Wesley Williams, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County, which, sitting

as finder of fact in Appellant’s bench trial, found him guilty of two counts

each of attempted burglary, criminal trespass, and possession of an

instrument of crime (PIC).1 Sentenced to four to ten years’ incarceration on

his convictions for attempted burglary, a concurrent four to ten years for

criminal trespass, and two years’ probation for PIC, Appellant challenges the

validity of his waiver of trial counsel and contends that the court abused its



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 901 and 3502, 3503, and 907, respectively.
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exercise of sentence discretion.    We vacate judgment of sentence and

remand for a new trial.

      The trial court aptly provides the factual and procedural history of

Appellant’s case as follows:

      On October 22, 2015, following a [pre-trial] colloquy, Defendant
      [hereinafter Appellant] was permitted to proceed pro se, with
      back-up counsel. Appellant then proceeded to trial before [the
      trial] court, sitting without a jury.

      ***

      Mark Paronish testified at trial that on June 11, 2015, he
      received a text message from his neighbor which caused him to
      go home. N.T. 10/22./15 at 12. He identified a photo of the
      rear of his property and testified that he did not give Appellant
      permission to enter his home. N.T. at 14-15.

      Robert Kopansky testified that he was at home on June 11,
      2015, when he saw Appellant climbing over the fence of the
      house behind his home. He observed Appellant cup his hands
      and peer in through the sliding door identified by Mr. Paronish as
      his property and attempt to open the door, before doing the
      same at the sliding glass door of the neighboring property. He
      attempted to open the sliding glass doors multiple times. N.T. at
      17-23, 27. Appellant spent 15-20 minutes in the rear of the
      properties. N.T. at 23.

      Mr. Kopansky observed that Appelalnt was carrying a small black
      shopping bag.     N.T. at 21.     Appellant removed an orange
      handled screwdriver from the bag and attempted to wedge it
      into the window of the second property. N.T. at 21, 22-23. Mr.
      Kopansky took photographs C-1 and C-2, which now show
      Appellant with the black bag, inside the fenced yards at the rear
      of the properties. N.T. at 19; C-1 and C-2.

      During these events, Mr. Kopansky called 9-1-1. When the
      police arrived, he called out to them indicating where Appellant
      was located. As the police kicked open the door in the fence to
      reach Appellant, he threw the black bag over the fence into the


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      yard of a neighboring property. N.T. at 23-24. Mr. Kopansky
      directed the police to the bag, which they recovered. N.T. at 29.

      ***
      On January 7, 2016, Appellant [received his sentence, as noted
      supra. After Appellant filed a successful PCRA petition seeking
      reinstatement of his direct appellate rights nunc pro tunc, he
      filed this timely direct appeal through the Defender Association
      of Philadelphia].

Trial Court Opinion, filed 9/19/16 at 1, 2-3.

      Appellant presents the following questions for our review:

      I.    DID NOT THE LOWER COURT ERR BY FAILING TO
            CONDUCT A COMPLETE AND THOROUGH ON THE
            RECORD   COLLOQUY   OF   APPELLANT    BEFORE
            ALLOWING HIM TO PROCEED TO TRIAL PRO SE IN
            VIOLATION OF PENNSYLVANIA RULE OF CRIMINAL
            PROCEDURE   121, WHICH    RESULTED   IN   AN
            UNKNOWING, INVOLUNTARY AND UNINTELLIGENT
            WAIVER OF HIS RIGHT TO COUNSEL UNDER THE
            SIXTH AMENDMENT TO THE UNITED STATES
            CONSTITUTION AND ARTICLE I, SECTION 9 OF THE
            PENNSYLVANIA CONSTITUTION?

      II.   DID NOT THE LOWER COURT VIOLATE THE PRECEPTS
            OF THE PENNSYLVANIA SENTENCING CODE AND
            IMPOSE A SENTENCE THAT WAS MANIFESTLY
            UNREASONABLE, EXCESSIVE AND AN ABUSE OF
            DISCRETION?

Appellant’s brief at 4.

      Appellant contends that the trial court erred in permitting him to

proceed pro se without conducting an adequate waiver-of-counsel colloquy.

Appellant begins by pointing out that a defendant's waiver of his federal and

state constitutional rights to counsel must be knowing and intelligent, which

requires a trial court to engage in a probing inquiry to ensure that the

individual understands his right to counsel and the consequences of waiving

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counsel. Appellant’s brief at 16. He continues that there is a presumption

against waiver and that waiver may not be presumed where the record is

silent.   Instead,   the   record   must   clearly   demonstrate   an   informed

relinquishment of a known right.       Id. at 17 (citing Commonwealth v.

Payson, 723 A.2d 695, 700 (Pa.Super. 1999)).

      Notably, the trial court concedes that its colloquy was deficient under

Rule 121, infra, and recommends that we vacate judgment of sentence and

remand this matter for a new trial.    The Commonwealth does not contest

Appellant’s position as to the deficiency of the colloquy, but it responds that

Appellant waived his claim where neither he nor his defense counsel

objected during the colloquy or immediately afterward when the court asked

if there were any questions or concerns. We address the Commonwealth’s

waiver position first.

      In Commonwealth v. Davido, 868 A.2d 431 (Pa. 2005), which

involved a PCRA appeal, the Pennsylvania Supreme Court held that a trial

court has a sua sponte duty to ensure that a proper colloquy is performed

when a defendant seeks to represent himself.         In so holding, the Davido

Court rejected the position that it is incumbent upon counsel to object to a

colloquy. Specifically, the Court reasoned:

      In Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504
      (2002), this court considered whether the prosecutor could
      “colloquy” a defendant consistent with Rule 121.             We
      acknowledged that a defendant had the right to represent
      himself at trial. McDonough, 812 A.2d at 506 (citing Faretta
      v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562


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       (1975)). We then made clear that when a defendant desired to
       represent himself, “he must petition the court and the court
       must follow the appropriate legal procedure for securing a valid
       waiver of counsel.” Id. Rule 121 provided the appropriate legal
       procedure and could be complied with by the prosecutor's
       colloquy so long as the prosecutor inquired into the six areas set
       forth by the Comments to Rule 121 before the trial judge.[]
       McDonough, 812 A.2d at 506-07. In this way, the trial judge
       could ascertain on the record whether there was a knowing,
       voluntary, and intelligent waiver of counsel. Id. at 508. We
       stressed, however, that it was the trial judge who was
       “ultimately responsible for ensuring that the defendant is
       questioned about the six areas discussed above and for
       determining whether the defendant is indeed making an
       informed and independent decision to waive counsel.”              Id.
       Likewise, we held that it was the “trial judge” that had the duty
       to ensure that a defendant's right to counsel was protected. Id.
       Thus, we conclude that, consistent with McDonough, the Rules
       of Criminal Procedure are clear that it is up to the trial court, and
       not counsel, to ensure that a colloquy is performed if the
       defendant has invoked his right to self representation. The
       Commonwealth's argument that this claim must be pled as one
       of ineffectiveness fails.[]

Davido, 868 A.2d at 437–38. (footnotes omitted).2           Given the Supreme

Court’s decision in Davido, therefore, we discern no merit to the

Commonwealth’s waiver argument.
____________________________________________


2
  In footnote 12 of Davido, the Majority clarified that Rule 121(c) imposes a
duty on the trial court to conduct, sua sponte, a full and complete waiver
colloquy even where counsel does not squarely invoke the defendant’s right
to self-representation on his behalf. The Majority also dismissed the concern
expressed in a concurring opinion that the decision “endorses hybrid
representation.”    To this point, the Majority opined “at the time a
defendant has affirmatively asserted his desire to proceed pro se,
the defendant and his counsel are no longer working in concert. In
fact, requiring counsel to take further action on a defendant’s behalf
after the defendant has requested to proceed pro se would
undermine the Sixth Amendment right to self representation.” Id.,
at 438 n.12 (emphasis added).



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      We proceed, then, to review the adequacy of the trial court’s waiver of

counsel   colloquy.     The   Pennsylvania    Supreme     Court   promulgated

Pa.R.Crim.P. 121 to guide trial courts in determining whether a defendant

was knowingly, voluntarily, and intelligently waiving his right to an attorney.

That rule provides:

      A) Generally.

      (1) The defendant may waive the right to be represented by
      counsel.

      (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


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     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.

     (3) The judge or issuing authority may permit the attorney for
     the Commonwealth or defendant's attorney to conduct the
     examination of the defendant pursuant to paragraph (A)(2). The
     judge or issuing authority shall be present during this
     examination.

     (B) Proceedings Before an Issuing Authority. When the
     defendant seeks to waive the right to counsel in a summary case
     or for a preliminary hearing in a court case, the issuing authority
     shall ascertain from the defendant whether this is a knowing,
     voluntary, and intelligent waiver of counsel. In addition, the
     waiver shall be in writing,

     (1) signed by the defendant, with a representation that the
     defendant was told of the right to be represented and to have an
     attorney appointed if the defendant cannot afford one, and that
     the defendant chooses to act as his or her own attorney at the
     hearing or trial; and

     (2) signed by the issuing authority, with a certification that the
     defendant's waiver was made knowingly, voluntarily, and
     intelligently.

     The waiver shall be made a part of the record.

     (C) Proceedings Before a Judge. 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
     this is a knowing, voluntary, and intelligent waiver of counsel.

     (D) Standby Counsel. When the defendant's waiver of counsel
     is accepted, standby counsel may be appointed for the
     defendant. Standby counsel shall attend the proceedings and
     shall be available to the defendant for consultation and advice.

Pa.R.Crim.P. 121.

     At Appellant’s October 22, 2015, waiver of counsel hearing, the trial

court conducted the following colloquy:


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     COURT:       How old are you today, sir?

     APPELLANT:          Fifty-five.

     Q:    How far did you go in school?

     A:    Ninth grade.

     Q:    Do you read, write, and understand the English language?

     A:    Yes.

     Q:    Are you under the influence today of any drugs or alcohol?

     A:    No.

     Q:    Have you taken any medication in the past two days?

     A:    Just for my pain.

     Q:    All right. Do you have trouble understanding what I’m
     saying or what’s going on today?

     A:    No.

     Q:    Have you ever been diagnosed with a mental illness or
     condition?

     A:    No.

     Q:    Has anybody forced you or coerced you to request self-
     representation in this case?

     A:    No.

     Q:    All right.   Is this a decision that you discussed with your
     attorney?

     A:    Yes.

     Q:   Do you understand, sir, that if you represent yourself, you
     would be at a substantial disadvantage because of your


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      knowledge about the law and the process and trial litigation? Do
      you understand that?

      A:    Yes.

      Q:    You are willing to take on that disadvantage?

      A:    Yes.

      Q:   Do you understand that, while we may make some
      concessions since you’re not a lawyer, the rules still apply to
      you?

      A:    Okay.

      Q:    You making that decision voluntarily despite these
      warnings means that if you are convicted and you raise this as
      an issue for appeal, it probably will not be successful because
      you are being warned and an attorney is being made available to
      you. Do you understand that?

      A:    Okay.

      Q:    Do you understand that?

      A:    Yes.

N.T. 10/22/15, 7-9.

      Appellant submits that the trial court did not conduct a proper

colloquy, as it overlooked critical provisions of Rule 121.   Specifically, the

court failed to ask whether Appellant understood the nature of the charges

of attempted burglary, criminal trespass and possession of an instrument of

crime, and the elements of each of the charges, he argues. It failed to elicit

whether Appellant was aware of the permissible range of sentences and/or

fines for the charges and whether he understood that there were possible

defenses to the charges of which counsel might be aware, he continues.


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Finally, the court failed to ask if he understood that, in addition to defenses,

he possessed other rights and possible grounds to object to court errors that

might be lost permanently if not timely asserted.

        Our review of the record, Rule 121, and interpretive decisional law

leads us to agree with both Appellant and the trial court that the court’s

colloquy failed to ask crucial questions designed to ascertain that a

defendant understands the nature of the charges against him, the elements

of each of those charges, and the permissible range of sentences and/or

fines    for   the   offenses     charged.         Without   confirming   Appellant’s

understanding of such matters, the court could not verify that his decision to

waive his right to counsel and proceed pro se was knowing, voluntary, and

intelligent. Accordingly, we are constrained to vacate judgment of sentence

and remand for a new trial.3

        Judgment of sentence is vacated.           Case remanded for proceedings

consistent with this decision. Jurisdiction is relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2017
____________________________________________


3
 Our order vacating judgment of sentence renders moot the second issue
Appellant raises for our review.



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