J-S45003-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,       IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA
                  Appellee

                             v.

NELSON ALVARADO-LENHART,

                                    Appellant          No. 1733 MDA 2012


       Appeal from the Judgment of Sentence Entered September 6, 2012
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003854-2011

BEFORE: BENDER, J., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, J.:                        FILED NOVEMBER 21, 2014

        Appellant, Nelson Alvarado-Lenhart, appeals from the judgment of

sentence of six to fifteen years’ incarceration, imposed after a jury convicted

him of aggravated assault, robbery, theft by unlawful taking, receiving

stolen property, and simple assault. On appeal, Appellant contends that he

was denied his constitutional right to counsel, as he did not knowingly,

voluntarily, and intelligently waive his right to an attorney.     After careful

review, we are constrained to vacate Appellant’s judgment of sentence and

remand for a new trial.

        While the facts of Appellant’s case are irrelevant to our disposition, we

note that his convictions stemmed from evidence that he robbed and beat a

man outside of a restaurant in August of 2011. After Appellant was charged

with the above-stated offenses, the court appointed Paul Yessler, Esquire, to
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
J-S45003-13



represent him. At a pretrial status hearing on December 16, 2011, Attorney

Yessler informed the court that Appellant had repeatedly expressed his

desire to represent himself.     N.T. Hearing, 12/16/12, at 2.     Appellant,

however, immediately interjected, explaining that he did not wish to

represent himself but, instead, he wanted a new attorney because he was

unhappy with Attorney Yessler’s representation.      Id.   After listening to

Appellant’s complaints about Attorney Yessler’s representation, the court and

Appellant had the following exchange:

     [The Court]: If you don’t want [Attorney] Yessler to represent
     you, you have the right to hire an attorney. You say you were
     making $700 a week. You can hire an attorney of your choice.

     [Appellant]: I was doing that job one month and spent that
     money already taking care of bills.

     [The Court]: I need to advise you, you have that right if you
     don’t want [Attorney] Yessler to represent you.

     [Appellant]: No, I don’t.

     [The Court]: He is your free attorney.    You have to represent
     yourself –

     [Appellant]: Why can’t I have a court appointed attorney?

     [The Court]: He is your court appointed attorney. You don’t get
     to pick and choose who you are assigned.

     [Appellant]: I’m not picking and choosing.  I’m asking for
     somebody that’s going to fight for me that isn’t giving me
     attitude that hasn’t fought one bit.  He’s rolling with the
     punches. He is not doing anything for me. You know what I
     mean?

     I deserve a fair hearing, a fair trial. You know what I mean? I
     would represent myself if I knew the bells and whistles of the
     whole thing. I don’t. I am not going – I refuse to go any further
     with this gentleman.


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J-S45003-13


      [The Court]: All right.

      [Appellant]: I will represent myself if I have to, but everything is
      going to be ---

      [The Court]: Stop.

      [Appellant]: All right.

      [The Court]: And now, this 16th day of December, 2011, after
      colloquy conducted, and upon motion of [] Paul Yessler, Esquire,
      the appearance of Attorney Yessler and the Public Defender is
      hereby withdrawn.

      There is definitely conflict between the attorney and his client
      with regard to the manner [in] which he should conduct his
      services, and [Appellant] doesn’t want him to represent him
      anymore.

      We need to address the waiver of counsel. You can hire your
      own attorney. Do you understand that by representing yourself
      you will be bound by all the rules of procedure that lawyers are
      bond [sic] by and –

      [Appellant]: Can I get some kind of information on what the
      same rules that apply to a lawyer that apply to me? Can I get
      information telling me what’s going on?

      [The Court]: You have [that] at the prison.       Don’t they have
      some sort --

      [Appellant]: I put in a communication form like that, and they
      expect me to go to an inmate and have them direct me. And
      there, there is a lot of information missing from the books at the
      law library. I asked numerous times. I asked for help and
      information.

      [The Court]: Stop, [Appellant]. You are in a box and I am in a
      box. You apparently can’t hire a private attorney. You have a
      public attorney and you fired him. You and I are left with each
      other because that’s the way it’s going to be.

      Now, you obviously want a trial, right? You want a trial?

      [Appellant]: I want to be represented adequately.

Id. at 6-8.


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J-S45003-13



        The Court then discussed why it believed Appellant had received

adequate representation, noting that Attorney Yessler called witnesses at the

preliminary hearing, filed a writ of habeas corpus on Appellant’s behalf, and

conducted “a fairly good investigation of the case.” Id. at 9. The court then

stated,

        [The Court]: I didn’t believe that the issues that were raised by
        your attorney on your behalf which you have alluded to that,
        that that was sufficient. The evidence was you committed these
        offenses. So let’s go forward. We will set a trial date and you
        will represent yourself.

Id. at 9. The court then provided Appellant with “a waiver of counsel form,”

directing Appellant to “read it and sign it,” and stating that doing so “means

you don’t want [Attorney] Yessler.” Id. Appellant then signed the waiver

form.     Finally, the court appointed Jay Nigrini, Esquire, to act as stand-by

counsel for Appellant, but explained to Appellant that he was still

representing himself, and that Attorney Nigrini was “just there to answer

questions.” Id. at 10.

        On April 18, 2012, Appellant filed a pro se “Petition to Uphold

Retainment of Jay M. Nigrini to Represent As Conflict Counsel in Case Doc.

3854/11.” In that document, Appellant contended that he was deprived of

his right to counsel because the court did not conduct a proper colloquy to

ensure his waiver was knowing, intelligent, and voluntary.      He asked that

the court appoint him representation.       On April 24, 2012, the trial court

issued an order denying Appellant’s petition. The court stated: “Jay Nigrini,

Esquire, has been appointed stand-by counsel for [Appellant].       [Appellant]

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continues to be eligible for free legal representation by the Public Defender,

Paul Yessler, Esquire.” Trial Court Order, 4/24/12.

      On August 21, 2012, three days before Appellant’s jury trial was set to

commence, he again filed a pro se document entitled “Petition for Counsel

Representation.” Therein, Appellant alleged that he was indigent and could

not afford counsel, and asked that the court appoint him an attorney. The

court apparently ignored this filing and Appellant proceeded to trial

representing himself. At the close thereof, he was found guilty of the above-

stated offenses.

      Following his conviction, Appellant hired private counsel who filed a

post-sentence motion on his behalf, averring that Appellant’s waiver of his

right to counsel was not knowing, intelligent, and voluntary where the court

did not conduct a proper colloquy as mandated by Pa.R.Crim.P. 121. The

court denied that post-sentence motion. Appellant then filed a timely notice

of appeal, as well a timely concise statement of matters complained of on

appeal pursuant to Pa.R.A.P. 1925(b). On appeal, he presented one issue

for our review:

      A. Whether the trial court denied [Appellant] his right of counsel
         by not complying with the requirements of Rule of Criminal
         Procedure 121 at the hearing held on December 16, 2011?

Appellant’s Brief at 7.

      On September 16, 2013, this Court issued a memorandum decision

vacating Appellant’s judgment of sentence and remanding for a new trial. In




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doing so, we relied on Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011),

where our Supreme Court stated:

     A criminal defendant has a constitutional right, necessarily
     implied under the Sixth Amendment of the U.S. Constitution, to
     self-representation at trial. Faretta v. California, 422 U.S. 806,
     95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, before a
     defendant will be permitted to proceed pro se, he or she must
     knowingly, voluntarily, and intelligently waive the right to
     counsel. Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d
     645, 655 (2008). To ensure that a waiver is knowing, voluntary,
     and intelligent, the trial court must conduct a “probing colloquy,”
     which is a searching and formal inquiry as to whether the
     defendant is aware both of the right to counsel and of the
     significance and consequences of waiving that right.
     Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1335–
     36 (1995). More specifically, the court must determine the
     following:

        (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



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             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); Blakeney, supra at 655; Starr, supra
        at 1335.

Id. at 262-63.

        We also emphasized our Supreme Court’s directive that it is “the trial

judge who [is] ultimately responsible for ensuring that the defendant is

questioned about the six areas discussed above and for determining whether

the defendant was indeed making an informed and independent decision to

waive counsel.” Commonwealth v. Davido, 868 A.2d 431, 437 (Pa. 2005)

(citation and quotation marks omitted). Accordingly, it is the trial judge who

has “the duty to ensure that a defendant’s right to counsel was protected.”

Id. Once a defendant expresses a desire to represent himself, the failure

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

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

Clyburn,         42      A.3d       296,       300-01    (Pa.   Super.   2012);   see   also

Commonwealth v. Patterson, 931 A.2d 710 (Pa. Super. 2007).

        Based on this legal precedent, we concluded in our September 16,

2013 memorandum decision that the trial court in Appellant’s case failed to

conduct an adequate colloquy to ensure Appellant’s waiver of his right to

counsel was valid.             Instead, the court incorrectly applied a totality of the

circumstances analysis.1                See Commonwealth v. Houtz, 856 A.2d 119,
____________________________________________
1
  As evidence of this fact, we noted the trial court’s statement that “the
record, read in its entirety, demonstrates that [Appellant] was offered
counsel but intelligently and understandingly rejected that offer.” Trial Court
(Footnote Continued Next Page)

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J-S45003-13



130 (Pa. Super. 2004); see also Commonwealth v. Payson, 723 A.2d

695, 704 (Pa. Super. 1999). We emphasized that the court was required to

colloquy Appellant on all six areas set forth in Rule 121, yet based on the

portions of the December 16, 2011 hearing quoted supra, it was obvious

that the court failed to do so. Specifically, we emphasized that the court did

not inform Appellant of the nature and elements of charges pending against

him, permissible range of punishments, possible defenses, and the danger of

permanently waiving his right to assert certain defenses and other rights if
                       _______________________
(Footnote Continued)
Opinion (TCO), 11/15/12, at 5. We also emphasized the following language
utilized by the trial court in supporting the above-stated conclusion:

        The [c]ourt held a lengthy discussion on December 16, 2011,
        with [Appellant] regarding his rights, including the right to
        continue with his appointed counsel’s representation and his
        right to self[-]representation. Unfortunately, [Appellant] was
        not cooperative with the [c]ourt during this discussion.
        However, [Appellant] made it abundantly clear that he refused
        to continue with his appointed counsel’s representation. The
        [c]ourt informed [Appellant] that should he choose to proceed
        pro se, he would be bound by all of the rules of procedure that
        lawyers are bound by. During this discussion with the [c]ourt,
        [Appellant] read and signed a WAIVER OF COUNSEL form, which
        indicated that [Appellant] had been informed of the offenses
        against him and had been advised of his right to secure a lawyer
        at his own expense or have one appointed for him. In addition
        to its discussion with [Appellant] and securing execution of the
        WAIVER OF COUNSEL form, the [c]ourt appointed standby
        counsel to be available to [Appellant] for consultation and advice
        during the proceedings. Based on a complete review of the
        discussion which occurred on December 16, 2011, the [c]ourt
        believes that [Appellant’s] waiver of counsel was knowing,
        voluntary and intelligent.

Id. at 5-6 (citations to the record omitted).



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J-S45003-13



not raised at trial. We further determined that the fact that Appellant was

“not cooperative,” the     court’s appointment of standby counsel, and

Appellant’s completion of a written colloquy did not dispel the court’s

obligation to conduct a full, on-the-record colloquy. See Commonwealth

v. Brazil, 701 A.2d 216, 219 (Pa. 1997) (“Whether standby counsel is

ultimately appointed or not, and irrespective of the quality of representation

achieved at trial, when a defendant indicates a desire to waive his right to

counsel, a full waiver colloquy must be conducted.”); Commonwealth v.

Baker, 464 A.2d 496, 499 (Pa. Super. 1983) (“A form providing for the

simple written waiver of counsel, without an on-the-record inquiry, will not

suffice as an alternative means to assuring valid waivers.”). We noted that

this was especially true regarding the written colloquy, as the court

misinformed Appellant that signing the form “means that you don’t want

[Attorney] Yessler.”   N.T. Hearing, 12/16/11, at 9.   We reasoned that the

court’s misstatement made it unclear whether Appellant signed the form

with the understanding that he was waiving his right to counsel, or whether

he did so merely to confirm that he did not want Attorney Yessler to

represent him.

      In sum, we concluded in our September 16, 2013 memorandum that

the court did not comply with the colloquy requirements of Rule 121 at the

December 16, 2011 hearing.        Moreover, after that hearing, Appellant

repeatedly filed pro se documents requesting that counsel be appointed

which the court either denied or disregarded. Thus, we found it clear that

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Appellant’s waiver of counsel was not knowing, intelligent, and voluntary.

Accordingly, we vacated his judgment of sentence and remanded for a new

trial.

         On September 30, 2013, the Commonwealth filed an application for

reargument, which this Court denied on November 6, 2013.                    The

Commonwealth then filed a petition for allowance of appeal with our

Supreme Court.        On August 19, 2014, the Supreme Court vacated our

September 16, 2013 decision and remanded for us to reconsider our

disposition under Commonwealth v. Lucarelli, 971 A.2d 1173 (Pa. 2009).

We now do so herein.

         In Lucarelli, the defendant was arrested and charged with various

offenses.     Id. at 1176.    Prior to trial, he retained the services of three

different attorneys, who all ultimately petitioned to withdraw. Id. After one

such petition to withdraw was filed by counsel, Lucarelli filed a pro se

“Petition for Due Process Violation and Attorney Misconduct.” Id. However,

at the hearing on that motion, Lucarelli confusingly insisted he did not want

his attorney to withdraw.        Id.   Nevertheless, the court permitted that

counsel to withdraw, and advised Lucarelli to retain another attorney. Id.

         Lucarelli did not do so. Instead, at a later hearing, he again appeared

pro se and informed the court that he wanted a public defender. Id.

However, when he was provided an application to obtain court-appointed

counsel, he did not complete it and appeared pro se at the next court

proceeding.      Id. at 1176-1177.     Lucarelli then failed to appear for jury

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J-S45003-13



selection, causing the court to continue trial and issue a bench warrant for

his arrest. Id. at 1177.

      The bench warrant was later lifted, and a fourth attorney was

appointed   as   Lucarelli’s   standby   counsel.   Id.    However,    Lucarelli

subsequently informed the court “he did not wish to proceed alone before a

jury.” Id. Accordingly, the court reduced his bail from $100,000 to $80,000

so that Lucarelli could obtain counsel. Id. Nevertheless, Lucarelli appeared

pro se for both jury selection and trial, and was unable to provide any

reason for his failure to retain counsel. Id.

      On appeal, our Supreme Court held that Lucarelli had forfeited his

right to counsel.   In reaching this decision, the Court began by discussing

the distinction between waiver and forfeiture:

      Waiver is “an intentional and voluntary relinquishment of a
      known right.” By contrast, forfeiture, as defined by the Third
      Circuit, does not require that the defendant intend to relinquish a
      right, but rather may be the result of the defendant's “extremely
      serious misconduct” or “extremely dilatory conduct.”

Id. at 1179 (citations omitted). The Court then concluded that “[Rule] 121

and its colloquy requirements do not apply to situations where forfeiture is

found.” Id. It reasoned that,

      [t]o hold otherwise would permit a recalcitrant defendant to
      engage in the sort of obstructive behavior that mandates the
      adoption of the distinction between forfeiture and waiver in the
      first instance. Should an unrepresented defendant choose not to
      engage in the colloquy process with the trial court, were there no
      provision for forfeiture of counsel, that defendant could
      impermissibly clog the machinery of justice or hamper and delay
      the state's efforts to effectively administer justice. Such a result


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J-S45003-13


      would be untenable. We reject [Lucarelli’s] suggestion that the
      Commonwealth must demonstrate that Appellee “knowingly and
      intelligently” engaged in conduct that had the inevitable effect of
      impairing his constitutional right to counsel. We hold today
      that where a defendant's course of conduct demonstrates
      his or her intention not to seek representation by private
      counsel, despite having the opportunity and financial
      wherewithal to do so, a determination that the defendant
      be required to proceed pro se is mandated because that
      defendant has forfeited the right to counsel.

Id. (emphasis added).

      Applying this holding to the facts of Lucarelli, the Court concluded

that Lucarelli had forfeited his right to counsel for the following reasons:

      [Lucarelli’s] behavior, over a course of 8½ months, was
      sufficiently obstructive to mandate a conclusion of forfeiture
      because he engaged in extremely dilatory conduct. [Lucarelli]
      had more than eight months to prepare for trial; had the
      financial means to retain counsel; did retain counsel on
      several occasions, although the attorneys were permitted
      to withdraw when the attorney-client relationship
      deteriorated; was given access to $20,000 by the trial
      court some five weeks before the commencement of trial
      for the purpose of retaining counsel; and failed to offer an
      explanation for not having retained counsel by the start of
      trial. [Lucarelli] simply decided not to retain private
      counsel because he did not wish to spend the money.
      Contrary to the Superior Court's conclusion, we hold that the
      trial court acted properly in directing [Lucarelli] to proceed to
      trial pro se. Thus, we hold further that the Superior Court
      committed an error of law in failing to recognize that [Lucarelli’s]
      pattern of behavior constituted extremely dilatory conduct,
      sufficient to result in the forfeiture of his right to counsel.

Id. at 1180 (footnote omitted).

      For the reasons stated infra, we find Lucarelli distinguishable from the

facts of the instant case. Notably, unlike the defendant in Lucarelli, here,




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Appellant was eligible for court-appointed counsel.2                         As the above-

emphasized language in Lucarelli indicates, our Supreme Court’s conclusion

that Lucarelli’s conduct “was sufficiently obstructive to mandate a conclusion

of forfeiture” hinged on the fact that Lucarelli could afford counsel (and, at

one point during the proceedings, was given access to $20,000 to acquire

counsel),        yet      continuously         failed   to   retain   representation   without

explanation.         Lucarelli, 971 A.2d at 1180.               The same is not true in the

present case; Appellant had court-appointed counsel, and nothing in the

record suggests that he could afford – and simply chose not to retain – a

private attorney.

        Moreover, in Lucarelli, the defendant had three privately retained

attorneys who withdrew before he began appearing for court proceedings

____________________________________________
2
  Our Court highlighted this same distinction in Commonwealth v. Kelly, 5
A.3d 370, 379 n.7 (Pa. Super. 2010) (noting that Lucarelli “deal[t] with
forfeiture as a result of [the] defendant’s dilatory conduct,” but differed from
Kelly because “Kelly … was eligible for court-appointed counsel”). In Kelly,
we chose not to rely on Lucarelli to determine if Kelly’s conduct was
sufficiently dilatory to constitute forfeiture of his right to court-appointed
counsel, instead looking to federal case law for guidance on that question.
Id. at 379 (relying on U.S. v. Fazzini, 871 F.2d 635, 641-42 (7th Cir. 1989),
cert. denied, 493 U.S. 982 (1989) (finding defendant waived right to court-
appointed counsel where he had been appointed four different attorneys with
whom he was displeased), and U.S. v. Moore, 706 F.2d 538 (5th Cir. 1983),
cert. denied, 464 U.S. 859 (1983) (finding defendant forfeited right to
counsel after rejecting three court-appointed attorneys, and being informed
that his failure to cooperate with the fourth appointed attorney would result
in waiver of his right to court-appointed counsel)).




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pro se.     To the contrary, here, Attorney Yessler was Appellant’s first, and

only, court-appointed attorney. This fact not only distinguishes Appellant’s

case from Lucarelli, but also from other decisions by our Court issued in the

wake of Lucarelli. See Kelly, 5 A.3d at 381 (finding Kelly forfeited his right

to counsel where he had been “unwilling to cooperate” with three court-

appointed attorneys); Commonwealth v. Thomas, 879 A.2d 246, 258 (Pa.

Super. 2005) (finding defendant “forfeited his right to counsel through his

pattern of serious       misconduct, abuse, threats, and        utter   failure   to

collaborate” with five attorneys the court appointed to represent him).

      Finally, the conduct of the defendant in Lucarelli was clearly more

dilatory than Appellant’s conduct in the present case. Namely, Lucarelli had

three different attorneys with whom he refused to cooperate.            He alleged

misconduct against one of those attorneys, yet at a hearing on that motion,

he confusingly insisted he did not want that counsel to withdraw. Lucarelli

also informed the court that he wanted appointed counsel, yet failed to fill

out   the    requisite   forms.   Moreover,   despite   being   provided    ample

opportunity, and funding, to retain private counsel, Lucarelli unexplainably

failed to do so and continued to appear pro se. On one occasion, he failed to

appear for court at all, requiring the court to continue the case and issue a

warrant for Lucarelli’s arrest. Lucarelli’s obstructive conduct hampered the

disposition of his case for over eight months.

      To the contrary, here, Appellant expressed his displeasure with his first

court-appointed attorney at a pretrial status hearing. He provided various

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J-S45003-13



reasons       why       he     did    not      wish    to      proceed   with   Attorney   Yessler’s

representation.           When the trial court characterized Appellant’s conduct as

evincing his desire to waive his right to counsel, Appellant did not refuse to

participate in the colloquy initiated by the court. See N.T. Hearing,

12/16/12, at 7-8.             Instead, he simply asked a question about whether he

could “get some kind of information” about the rules he must follow when

proceeding pro se.              Id. at 8.       After Appellant’s question, the court never

returned to the oral colloquy, instead discussing other matters and then

directing Appellant to sign the written colloquy if he did not “want [Attorney]

Yessler.”       Id. at 9.        Following the December 16, 2012 hearing, Appellant

proceeded pro se and, other than his filing of two pretrial motions asking the

court to appoint counsel, there is no indication that Appellant behaved in any

way which delayed the progression of his case or the start of his trial, at

which he represented himself.                     Based on these facts, we conclude that

Appellant’s behavior was not “extremely dilatory conduct, sufficient to result

in the forfeiture of his right to counsel.” Lucarelli, 971 A.2d at 1180.

        Accordingly, we conclude that Lucarelli is distinguishable and does

not compel a conclusion that Appellant forfeited his right to counsel.3

____________________________________________
3
  We also note that the facts of Appellant’s case are distinguishable from
those in Kelly and Thomas. In Thomas, the defendant was appointed five
different attorneys prior to the start of his trial. He then “refused to be
present at the trial to assist his latest counsel, and attempted to take back
his trial preparation materials from counsel.” Thomas, 879 A.2d at 258.
On the second day of trial, the defendant threatened to physically harm his
attorney, as well as counsel’s family. Id. at 258-59. Based on the
(Footnote Continued Next Page)

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Additionally, based on the rationale set forth in our September 16, 2013

memorandum (reiterated, supra), we conclude that the trial court did not

comply with the colloquy requirements of Rule 121 at the December 16,

2011 hearing. Thus, the record does not establish that Appellant knowingly,

intelligently, and voluntarily waived his right to counsel. Because Appellant

neither forfeited, nor validly waived, that right, we are constrained to vacate

his judgment of sentence and remand for a new trial.

        Upon remand, the court shall determine if Appellant wishes to be

represented by Attorney Yessler, or proceed pro se. If he desires to proceed

pro se, the court must conduct a full and thorough waiver colloquy pursuant

                       _______________________
(Footnote Continued)
defendant’s “extremely serious, abusive, and threatening misconduct,” we
concluded that he forfeited his right to counsel. Id. at 259.

       In Kelly, the defendant was appointed two attorneys and was
unwilling to work with either of them, resulting in the postponement of his
trial. Kelly, 5 A.3d at 381. When the court appointed a third attorney, it
warned Kelly that his failure to cooperate with that counsel “would result in
[his] representing himself pro se at trial.” Id. Nevertheless, Kelly again
failed to cooperate with his third attorney and sought to have a fourth
counsel appointed. Id. at 381-82. Kelly treated each of his attorneys with
disdain and claimed they were ineffective in representing him. Id. at 381-
82. Based on this behavior, we concluded that Kelly forfeited his right to
counsel. Id. at 382.

      Here, Appellant’s conduct does not compare with the defendants’
behavior in Thomas and Kelly.            Appellant informed the court of his
displeasure with his first court-appointed attorney. Nothing in the record
indicates he was disdainful, threatening, or abusive toward counsel.
Appellant’s conduct did not result in postponements or delays of the court
proceedings. Therefore, neither Thomas nor Kelly compels us to conclude
that Appellant forfeited his right to court-appointed counsel.



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to Rule 121. If, on the other hand, Appellant desires to be represented by a

court-appointed attorney other than Attorney Yessler, he must file a “motion

for change of counsel” and state “substantial reasons” for seeking that

change. See Pa.R.Crim.P. 122(C).

     Judgment     of   sentence   vacated.   Case   remanded    for   further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2014




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