J-S09007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JAMES ANTHONY GORE

                         Appellant                   No. 1103 MDA 2015


           Appeal from the Judgment of Sentence May 27, 2015
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0001756-2014


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

MEMORANDUM BY PANELLA, J.                           FILED MARCH 15, 2016

      Appellant, James Anthony Gore, appeals pro se from the judgment of

sentence   entered after    his   parole   was revoked for, among others,

threatening the life of his parole officer. After careful review, we remand for

a hearing to determine whether Gore has knowingly and intentionally waived

his right to counsel on appeal.

      Gore was initially arrested after a Pennsylvania State Trooper observed

him driving erratically on Interstate 83. After pulling Gore over, the Trooper

noticed a strong smell of alcohol coming from Gore, and observed that Gore

was confused and disheveled. After a non-jury trial, the trial court convicted

Gore of driving under the influence and five associated summary offenses,

and imposed a sentence of time served to six months of incarceration.
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        Gore was immediately paroled, and shortly thereafter was charged

with violating the terms of his parole. Specifically, his parole officer, Ryan

Laucks, alleged that Gore had failed to report for scheduled appointments,

failed to pay court costs and fines, failed to complete a drug and alcohol

evaluation, and had threatened to “put a warrant out for [Officer Lauck’s]

life.” Gore failed to attend the scheduled hearing on his violations, and a

warrant was issued for his arrest.

        Gore was later detained and at the subsequent hearing, he conceded

that he had failed to appear at the appointments, failed to pay costs and

fines, and failed to complete the drug and alcohol evaluation. See N.T.,

5/27/15, at 4-5. His only objection to each of these charges was that the

requirements were “voluntary acts.” See id. The trial court found him in

violation of his parole, and sentenced him to serve the balance of his original

sentence.

        Gore subsequently filed a document that the trial court treated as a

motion for reconsideration, which it denied.1 This timely appeal followed. The

trial court ordered Gore to file a statement of matters complained of on

appeal, and Gore filed a document in response. This document is a rambling

diatribe against the trial court, devoid of any rational attempt at forming a

coherent argument. To the best of our ability to discern, it does not appear

____________________________________________


1
    Gore’s filing is not included in the certified record before us.



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to argue that he was denied a right to counsel at any stage of this

proceeding. A review of the certified record does not reveal any explicit

waiver of Gore’s right to counsel, although there are several references in

the transcripts that Gore had previously declared an intent to proceed pro

se.

      At this juncture, there is no indication that Gore wishes to pursue a

claim that he was denied his right to counsel during the proceedings in the

trial court. However, we note that a court cannot “presume that a waiver of

trial counsel included a waiver of counsel on appeal. [A court is] obliged to

ascertain whether appellant had effectively waived his right to the assistance

of counsel[.]” Com. ex rel. Stanley v. Myers, 228 A.2d 215, 217 (Pa.

Super. 1967).

      Moreover, the presumption must always be against the waiver of
      a constitutional right. Nor can waiver be presumed where the
      record is silent. The record must show, or there must be an
      allegation and evidence which shows, that an accused was
      offered counsel but intelligently and understandingly rejected the
      offer.

Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (citation

omitted). In order to knowingly and voluntarily waive a constitutional right,

a defendant must be aware of the nature of the right and the risk associated

with forfeiting it. See Commonwealth v. Rogal, 120 A.3d 994, 1007 (Pa.

Super. 2015).

      Here, there is evidence that Gore had the financial means to retain

private counsel during the entirety of the litigation in the trial court but failed

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to do so. There is also evidence that he wished to proceed pro se during the

trial and subsequent hearings. However, there is no evidence regarding

Gore’s ability to afford counsel after he was incarcerated following the

revocation hearing, and no evidence that he was aware of his right to

counsel on appeal or the risks associated with waiving it. We are therefore

constrained to remand this matter to the trial court for a hearing to

determine whether Gore has knowingly and voluntarily waived his right to

counsel for purposes of appeal.

      This hearing must take place within 30 days of remand. At the

conclusion of the hearing, the trial court must make explicit findings

regarding Gore’s ability to pay and whether Gore has knowingly and

voluntarily waived his right to counsel. Within five days of the hearing, the

trial court must inform this Court of these findings by letter. If the trial court

finds that Gore is entitled to counsel on this appeal, all necessary steps

should be taken to ensure that a brief is filed with this Court within 30 days.

      Case remanded for proceedings consistent with this memorandum.

Jurisdiction retained.




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