J-S46040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    SHANE EDWARD MURPHY,

                             Appellant                No. 302 EDA 2018


           Appeal from the Judgment of Sentence December 18, 2017
                in the Court of Common Pleas of Bucks County,
             Criminal Division at No(s): CP-09-CR-0002333-2017.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                         FILED MARCH 08, 2019

        Shane Edward Murphy appeals from his judgment of sentence entered

after a judge determined he violated the terms of his probation. After review,

we vacate his judgment of sentence and the finding of a violation, and remand

for a new probation violation hearing.

        In July 2017, Murphy pleaded guilty to pulling a false fire alarm in an

apartment building.1 After accepting a plea deal between the Commonwealth

and Murphy, the trial judge, using a form order, imposed a sentence of 18

months of county probation. See Trial Court Order, 7/12/17.

        The trial judge completed the rest of the relevant portions of the form

order as follows:


____________________________________________


1   18 Pa.C.S.A. § 4905(a).
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          X Other: Probation may term[inate] after completion of 12
            months with no violations if approved by adult probation
            – this case to stay with Judge Gibbons only.

         SPECIAL CONDITIONS:

          X Costs within ______ . . .

          X Anger Management Program: Screen for / Ordered . . .

          X No Contact with Victim: Colonial Point Apts. Complex . . .

         X Drug & Alcohol/Mental Health Evaluation within ____ days
         and abide by recommendations . . . .

Id. (italics indicates handwritten portion of order). Notably, the order failed

to specify when Murphy had to commence or complete the special conditions

of the anger management classes or the drug and alcohol/mental health

evaluations.

       Five months later, the Commonwealth summoned Murphy before the

trial court for failing to comply with those special conditions.

       Probation Officer Natalia Mozyrsky, addressed the trial judge on behalf

of the Commonwealth.       See N.T., 12/18/17, at 2-3.      According to Officer

Mozyrsky, Murphy “stated unequivocally that he will not put out a dime of his

own money to pay for any condition that the court had ordered and will not

complete a drug and alcohol or mental health assessment, nor pay for anger

management classes other than the class he found on the Internet.” Id. at

3-4.

       The trial judge was familiar with Murphy since she was the sentencing

judge on his negotiated guilty plea for the false alarm charge in July of 2017.

In fact, when she originally sentenced him on that charge, she included a

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condition at his guilty plea hearing that: “If [Murphy] violates this probation,

that he be brought back in front of me and that I will determine what the

appropriate sanction will be.”   N.T., 7/12/17, at 19-20.     At the revocation

hearing, the trial judge allowed Murphy to testify about his inability to pay.

N.T., 12.18/17, at 6-10. Essentially, Murphy asserted that he did not refuse

to pay for any treatment, but rather, simply did not have the present financial

ability to do so.

      After hearing the conflicting testimony, the trial judge accepted the

probation officer’s recommendation and sentenced Murphy to imprisonment

of 1 to 365 days in the county jail, “with presumptive parole after completion

of drug and alcohol and mental health assessments while at the Bucks County

Correctional Facility.” Trial Court Opinion, 4/11/18, at 2. This timely appeal

followed. Both Murphy and the trial judge have complied with Pa.R.A.P. 1925.

      Murphy raises the following two issues on appeal:

         A. Did the Commonwealth fail to prove a probation violation
            by a preponderance of the evidence, when Murphy
            contested the alleged violation, the terms of his initial
            sentence, and he lacked the ability to financially comply?

         B. Was Murphy denied his enhanced state and federal due
            process rights when an uncounseled, probation violation
            hearing was allowed to proceed without advanced notice
            of the allegations, the opportunity to obtain counsel, the
            ability to prepare a defense, and the ability to ensure that
            the evidentiary an probationary rules of procedure were
            followed?

See Murphy’s Brief at 4.




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     Before addressing the merit of the above claims, we must first

determine whether Murphy waived his right to counsel. We reject the trial

judge’s conclusion that Murphy waived this issue. See Trial Court Opinion,

4/11/18, at 4. As this Court has recently reiterated:

           “Where the parties fail to preserve an issue for appeal,
        the Superior Court may not address that issue sua sponte.”
        Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 891
        (2010) (quoting Steiner v. Markel, 600 Pa. 515, 968 A.2d
        1253, 1257 (2009)). However, this Court has subsequently
        held that “where an indigent, first-time PCRA petitioner was
        denied his right to counsel—or failed to properly waive that
        right—this Court is required to raise this error sua sponte
        and remand for the PCRA court to correct that mistake.”
        Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.
        Super. 2011) (emphasis added). Further, “as a general
        rule, failure to raise an issue in a criminal proceeding does
        not constitute a waiver where the defendant is not
        represented by counsel in the proceeding. This rule does
        not apply where the defendant knowingly and intelligently
        waived representation by counsel.” Commonwealth v.
        Monica, 528 Pa. 266, 597 A.2d 600, 603 (1991) (citation
        omitted).

           It is the responsibility of the trial court to ensure that a
        colloquy is performed if the defendant has invoked his right
        to self-representation. See Commonwealth v. Davido,
        582 Pa. 52, 868 A.2d 431, 437-38 (2005). “Both the right
        to counsel and the right to self-representation are
        guaranteed by the Sixth Amendment to the United States
        Constitution and by Article I, Section Nine of the
        Pennsylvania Constitution. Deprivation of these rights can
        never be harmless.” Commonwealth v. Payson, 723 A.2d
        695, 700 (Pa. Super. 1999) (citations omitted). “Courts
        indulge every reasonable presumption against waiver
        of fundamental constitutional rights and that we do
        not presume acquiescence in the loss of fundamental
        rights. A waiver is ordinarily an intentional relinquishment
        or abandonment of a known right or privilege.” Johnson v.
        Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461
        (1938) (footnotes and citations omitted).

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Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa. Super. 2017)

(emphasis added).2

       The determination of whether a valid waiver of counsel occurred in any

particular case implicates the requirements of Pa.R.Crim.P. 121:

             “In order to make a knowing and intelligent waiver, the
          individual must be aware of both the nature of the right and
          the    risks    and    consequences     of    forfeiting     it.”
          Commonwealth v. Houtz, 856 A.2d 119, 123 (Pa. Super.
          2004) (citation omitted). Failing to conduct an on the record
          colloquy pursuant to Rule 121(c) before allowing a
          defendant to proceed pro se constitutes reversible error.
          Id. at 124 (citing Payson, 723 A.2d at 701). “Once federal
          constitutional rights are involved, and once it is clear . . . a
          particular defendant did not exercise those rights, our
          inquiry must be whether there was a valid waiver of those
          constitutional rights.” Commonwealth v. Norman, 447
          Pa. 217, 285 A.2d 523, 525-26 (1971). Furthermore,
          waiver cannot be presumed in a silent record. Id. at 526.

             The inherent importance of the right to counsel
          justifies its overwhelming protection and the rigorous
          requirements necessary to find waiver.

Johnson, 158 A.3d at 121-22 (emphasis added).3                  Given the above

precedent, “it is apparent that this Court has a duty to review” whether
____________________________________________


2For these same reasons, we also reject the trial judge’s waiver finding based
upon the lack of specificity in his Rule 1925(b) statement. See Trial Court
Opinion, 4/11/18, at 4.

3 We acknowledge that the Commonwealth Court has held “there is no
absolute right under either the Sixth Amendment or the Fourteenth
Amendment to be afforded counsel at a parole or probation revocation
hearing,” and that the court is not required to conduct an extensive on-the-
record colloquy under Rule 121 to ensure that a defendant made a valid waiver
of counsel. See Jester v. Pennsylvania Bd. of Probation and Parole, 595



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Murphy “properly waived his right to counsel” prior to the presentation of

evidence against him at the violation of probation hearing. Johnson, 158

A.3d at 122.

       Here, at the beginning of the violation of probation hearing, the following

exchange occurred regarding Murphy’s appearance without counsel:

             [ASSISTANT DISTRICT ATTORNEY]:        Commonwealth
          versus Shane Murphy, 2333 of 2017. [Murphy] is present
          without counsel today. He is not in agreement with the
          recommendation from Adult Probation and Parole.

             THE COURT: Mr. Murphy, you understand you have a
          right to have an attorney with you at these proceedings?

              [MURPHY]: Yes, Your Honor.

             THE COURT: And you did not retain counsel or apply for
          the Public Defender’s Office?

              [MURPHY]: Yes.

            THE COURT: Were you present when everyone else was
          sworn?

              [MURPHY]: No, Your Honor.

              THE COURT: All right. Can we have him sworn, please?




____________________________________________


A.2d 748, 751 (Pa. Cmwlth. 1991) (citing Gagnon v. Scarpelli, 411 U.S. 778
(1973)). Commonwealth Court decisions are not binding on this Court but
may be considered as persuasive authority. Commonwealth v. Heredia, 97
A.3d 392, 395 n.4 (Pa. Super. 2014). We do not adopt this statement of the
law in this instance. See Pa.R.Crim.P. 708(B)(1) (providing the trial court will
not revoke a probationary sentence unless a violation is found following a
hearing “at which the defendant is present and represented by counsel”).


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N.T., 12/18/17, at 2.        Murphy was then sworn and the violation hearing

proceeded, resulting in the finding of a probation violation and the imposition

of the aforementioned sentence.

       The above exchange between the trial court and Murphy was insufficient

to constitute an adequate waiver of counsel. Stated differently, the on-the-

record discussion on Murphy’s right to counsel was truncated and fell well

short of a colloquy memorializing a knowing and voluntarily waiver of counsel

pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) and

Pa.R.Crim.P. 121.      See, e.g., Commonwealth v. Robinson, 970 A.2d 455,

460 (Pa. Super. 2009) (en banc) (explaining, “[r]egardless of how ambiguous

a defendant’s expression may be, without [Pa.R.Crim.P 121] colloquy the

court cannot ascertain that the defendant fully understands the ramifications

of a decision to proceed pro se and the pitfalls associated with the lack of legal

training”).4

       Accordingly, we vacate both the order revoking Murphy’s probation and

the resulting judgment of sentence, and remand for additional proceedings.

As an initial matter, the court shall appoint counsel for Murphy, if he is

indigent, or conduct a Grazier hearing, if necessary, to ensure a valid waiver


____________________________________________


4 Murphy’s violation of probation hearing was one of several heard during the
same proceeding. We again caution the trial judge that such “en masse”
dispositions still require the protections of the defendant’s due process rights,
including the right to counsel. See generally, Commonwealth v. Mauk,
185 A.3d 406 (Pa. Super. 2018).


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of the right to counsel. The court may then proceed with new Gagnon I and

Gagnon II probation revocation hearings.

      Judgment of sentenced vacated.    Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/19




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