J-S50039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

BERNARD HILL, JR.

                            Appellant                 No. 2949 EDA 2014


          Appeal from the Judgment of Sentence September 19, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0015274-2012


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED AUGUST 28, 2015

        A jury found Bernard Hill guilty of burglary and criminal trespass1 but

acquitted him of possession of an instrument of crime.           The trial court

sentenced Hill to 7-14 years’ imprisonment for burglary and a consecutive

term of five years’ probation for criminal trespass. Hill filed a timely direct

appeal, and both Hill and the trial court complied with Pa.R.A.P. 1925. We

vacate Hill’s judgment of sentence and remand for a new trial, because the

trial court permitted Hill to proceed pro se during jury selection without

waiving his right to counsel knowingly, voluntarily, or intelligently.

        On July 26, 2012, Hill jumped over a fence to gain entrance to the

back patio of a home in Philadelphia, broke a kitchen window and removed
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1
    18 Pa.C.S. §§ 3502 and 3503, respectively.


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several items from the windowsill. An au pair who was caring for two young

children saw Hill removing the items; Hill saw the au pair and ran away. The

au pair called police, who apprehended Hill several minutes later running

down a nearby street, wearing exactly what the au pair had described to

police and carrying a small pocket knife, gloves and a flashlight on his

person.    The au pair identified Hill as the perpetrator minutes after his

arrest. N.T., 5/21/14, at 98-119, 144-52.

      Richard Desipio, Esquire was appointed to represent Hill, and Mr.

DeSipio served as counsel during Hill’s preliminary hearing, pre-trial

conference and multiple pre-trial status listings.

      On the day of trial, Hill indicated his dissatisfaction with Mr. Desipio’s

representation for the first time.   Hill asked the trial court to appoint new

counsel because he had allegedly seen Mr. Desipio only two times after his

arrest and had not received discovery or notes of testimony from the

preliminary hearing. Mr. Desipio disputed Hill’s assertions and stated that he

had given all discovery and the preliminary hearing transcript to Hill over

one year earlier. N.T., 5/20/14, at 4-5, 35-36, 38-39, 44-46. The trial court

credited Mr. Desipio’s response and denied Hill’s request to appoint new

counsel.

      Hill stated that he would not permit Mr. Desipio to serve as trial

counsel under any circumstances and demanded to represent himself.            He

also requested a continuance to prepare to present his own defense.          The

trial court denied Hill’s request for continuance, noting that the trial date had

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received priority status because the Commonwealth’s sole witness (the au

pair) had moved to France and had flown in for trial. N.T., 5/20/14, at 16-

17.

      The trial court colloquied Hill to determine whether his decision to

waive his right to counsel was knowing, voluntary and intelligent. Although

the colloquy was extensive, the Commonwealth admits that the court did not

inquire whether Hill understood (1) that he had the right to have counsel

appointed for him at no cost to him, (2) the elements of the crimes, (3) the

permissible fine for burglary, and (4) that counsel might be aware of

defenses that would be lost if they were not raised at trial.       Brief For

Commonwealth, at 15-16.      The court accepted Hill’s waiver of his right to

counsel as knowing, voluntary and intelligent.     Over Hill’s objection, the

court appointed Mr. Desipio as standby counsel and informed Hill that he

could speak with Mr. Desipio at any time during the proceedings.         N.T.,

5/20/14, at 40-41.

      The Commonwealth requested a jury trial. Hill, who wanted a waiver

trial, stated that he was “not going to disrupt” jury selection but would not

speak at all.   N.T., 5/20/14, at 42-43.     Hill did not speak during jury

selection, but the trial court proceeded with voir dire by asking questions on

the basis of the venirepersons’ responses to juror questionnaires. The court

struck venirepersons for cause when appropriate and asked Hill each time

whether he wished to accept each person questioned.        When he did not

respond, the court deemed his silence as an implicit acceptance.      Twelve

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jurors and two alternates were selected, all of whom affirmed that they

would be impartial.

      Before trial began the next day, the Commonwealth and Mr. Desipio

jointly requested that the court revoke Hill’s right to represent himself on the

ground that his conduct made clear that he did not truly want to represent

himself but merely wanted to engage in gamesmanship to delay the

proceedings. N.T., 5/21/14, at 3-9. The court asked Hill whether he would

meaningfully participate in his own defense at trial, and he answered that he

would not because he “[did not] want a jury trial” and “[did not] want this

lawyer.”   Id. at 12. The court thereupon revoked Hill’s right to represent

himself and re-appointed Mr. Desipio as counsel.

      Ultimately, after two days of deliberations and four questions to the

court, the jury returned a guilty verdict on the burglary and criminal

trespass charges and a not guilty verdict on the charge of possession of an

instrument of crime.

      Hill raises three issues on appeal, which we have re-ordered for the

sake of convenience:

      Did the trial court err when it allowed [Hill] to waive his right to
      counsel or when it denied his request for a continuance?

      Did the trial court improperly deny [Hill’s] request for new
      counsel?

      Did the jury selection process violate [Hill’s] right to an impartial
      jury trial or violate fundamental notions of due process?

Brief For Appellant, at 3.


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      Hill’s first argument, which we find dispositive, is that the trial court

erred by permitting him to waive his right to counsel. A criminal defendant’s

right to counsel is guaranteed by the Sixth Amendment to the United States

Constitution and Article I, § 9 and Article V, § 9 of the Pennsylvania

Constitution.   Commonwealth        v.   Owens,      750   A.2d    872,    875

(Pa.Super.2000). Alternatively, a criminal defendant has a well-settled

constitutional right to dispense with counsel and to defend himself before the

court. Commonwealth v. Starr, 664 A.2d 1326, 1334 (Pa.1995) (citing

Faretta v. California, 422 U.S. 806 (1975)). “Deprivation of these rights

can never be harmless.” Commonwealth v. Payson, 723 A.2d 695, 699–

700 (Pa.Super.1999). As our Supreme Court explained in Starr:

      [T]his highly personal constitutional right operates to prevent a
      state from bringing a person into its criminal courts and in those
      courts force a lawyer upon him when he asserts his
      constitutional right to conduct his own defense. Faretta, supra,
      [422 U.S.] at 807. Further, the denial of a criminal defendant’s
      right to proceed pro se is not subject to a harmless error
      analysis. McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8 []
      (1984) (‘the right to self-representation is either respected or
      denied; its deprivation cannot be harmless’).

Starr, 664 A.2d at 1334–1335.

      In the wake of Faretta, our Supreme Court promulgated Pa.R.Crim.P.

318, later renumbered as Pa.R.Crim.P. 121, to ensure that criminal

defendants intent upon waiving their right to counsel do so knowingly,

voluntarily and intelligently.   Rule 121 requires the court to elicit the




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following information from the defendant to ensure that his waiver is

knowing, voluntary, and intelligent:

        (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.

Pa.R.Crim.P. 121(A)(2).          When the court is satisfied that the defendant

understands     each     of    these   factors   but     knowingly,   voluntarily,   and

intelligently seeks to waive his right to counsel, the trial court, in keeping

with Faretta, must allow the individual to proceed pro se. Commonwealth

v. El, 977 A.2d 1158, 1162-63 (Pa.2009).               Upon accepting the defendant’s

waiver of counsel, the court may appoint standby counsel for the defendant.

Pa.R.Crim.P. 121(D).          Standby counsel “shall attend the proceedings and

shall   be   available    to    the    defendant   for    consultation   and   advice.”

Pa.R.Crim.P. 121(D).



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      “Regardless of the defendant’s prior experience with the justice

system,    a    penetrating    and    comprehensive    colloquy    is     mandated.”

Commonwealth v. Owens, 750 A.2d 872, 876 (Pa.Super.2000). “Failure

to conduct a thorough on-the-record colloquy before allowing a defendant to

proceed to trial pro se constitutes reversible error.”      Commonwealth v.

Phillips, 93 A.3d 847, 853 (Pa.Super.2014) (failure to conduct thorough

colloquy at multiple critical stages of proceedings required vacation of

judgment       of   sentence    and     remand   for     further        proceedings);

Commonwealth v. Clyburn, 42 A.3d 296, 300-01 (Pa.Super.2012) (new

trial required for failure to conduct thorough on-the-record colloquy before

allowing defendant to proceed to trial pro se); Commonwealth v. Houtz,

856 A.2d 119 (Pa.Super.2004) (trial court did not fully comply with rule

requiring it to ascertain whether defendant’s waiver of her right to counsel

was knowing, voluntary, and intelligent, and thus new trial was required);

Commonwealth v. Payson, 723 A.2d 695, 701 (Pa.Super.1999) (“the law

is now clear that the trial judge must conduct the colloquy [required under

Rule 121] and in doing so must formally question the defendant on the six

listed areas”).

      The defendant does not need to prove prejudice when he proceeds to

trial without a legally sufficient waiver of her constitutional right to counsel.

Clyburn, 42 A.3d at 302 n. 3 (citing Commonwealth v. Brazil, 701 A.2d

216 (Pa.1997) (granting new trial for defective waiver colloquy without


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analyzing whether the appellant suffered prejudice); Houtz, 856 A.2d at

130 (same); Payson, 723 A.2d at 704 (“[A]ny shortcoming relative to this

colloquy cannot be gauged to the quality of an accused’s self-representation

nor justified on the basis of his prior experience with the system”).

Moreover, as Clyburn observes, Pennsylvania cases which suggest that the

defendant needs to show prejudice arising from a defective waiver are

inapposite, because these cases had “different procedural postures”:

      Both Commonwealth v. Meehan, 628 A.2d 1151, 1159
      (Pa.Super.1993), and Commonwealth v. Davis, 573 A.2d
      1101, 1108 n. 7 (Pa.Super.1990), were on appeal under the Post
      Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. The
      cases of Commonwealth v. Bastone, 467 A.2d 1339, 1341
      (Pa.Super.1983), and Commonwealth v. Carver, 436 A.2d
      1209, 1211 (Pa.Super.1981), involved matters where counsel
      was not present at the preliminary hearing stages.

Clyburn, 42 A.3d at 302 n.3 (citations modified).

      The record demonstrates, and the Commonwealth concedes, that the

trial court erred by failing to question Hill about many of the six Rule 121

criteria before permitting him to represent himself, such as the elements of

the crimes, the permissible fine for burglary, the fact that he had the right to

have counsel appointed for him at no cost, and the possibility that counsel

knew about defenses that Hill would lose by not raising them at trial. These

omissions entitle Hill to a new trial.

      The Commonwealth asserts that these omissions did not prejudice Hill,

because (1) he knew he had the right to appointment of counsel at no cost,

because he had free counsel for almost two years; (2) he knew the elements

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of the crimes, because he said he researched the charges at a law clinic; (3)

the outcome would have been the same had the court told him the

maximum fine for burglary and that counsel might know about defenses that

Hill would lose by not raising them during trial; (4) he only represented

himself pro se during jury selection but enjoyed counsel’s representation for

the rest of trial, (5) he would not have done anything differently during voir

dire had the court told him the omitted information, because his jury

selection strategy was simply to stand mute; (6) Mr. Desipio was present

during jury selection as standby counsel, seated behind Hill, and Hill knew

that he was free to speak to Mr. Desipio whenever he wanted; (7) the court

protected Hill during jury selection by posing questions to venirepersons and

striking several of them for cause; (8) the prosecutor used several

peremptory strikes and “thereby remov[ed] some venirepersons who may

have been biased against [Hill],” such as individuals who had been mugged

or robbed, an individual whose daughter had been robbed, and an individual

whose cousin was a police officer; (9) each juror that was selected affirmed

that he/she would be impartial; and (10) the jury demonstrated its

impartiality by carefully considering the evidence and rendering a verdict,

after two days of deliberations and four questions, of not guilty on one of the

charges.   Brief For Commonwealth, at 17-20.       This litany of arguments,

while incisive, does not change the result of this appeal.          The Sixth

Amendment requires that the accused be given the assistance of counsel at


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every critical stage of a criminal prosecution. Commonwealth v. Ritchey,

245 A.2d 446, 448 (Pa.1968).           Voir dire is a critical stage of the criminal

proceeding, because the defendant’s life or liberty might depend on jury

selection.    Commonwealth v. Hunsberger, 58 A.3d, 32, 37 (Pa.2012).

Due to the defective Rule 121 colloquy, Hill lost his right to counsel during

this critical stage of the prosecution.            While the Commonwealth argues

forcefully that Hill suffered no prejudice, our precedent does not require the

defendant to demonstrate prejudice arising from the loss of counsel during

trial, regardless of his prior experience with the system. Clyburn, 42 A.3d

at 302 n. 3.

         The Commonwealth invites us to deny Hill a new trial because he lost

his right to counsel during a single critical stage of trial instead of the entire

trial.    Acceptance      of   this   argument       would   erode   prior    juridical

pronouncements on this subject and conflict with the clear language of Rule

121. We are unwilling to take this step. The loss of counsel during a single

critical stage is sufficient to warrant a new trial.2

         Judgment    of    sentence     vacated.     Case    remanded   for    further

proceedings. Jurisdiction relinquished.




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2
  Due to our disposition of this issue, we need not address Hill's remaining
issues in this appeal.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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