J-S12002-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                     v.

SHAWN N. WEBB,

                          Appellant                   No. 1831 EDA 2012

             Appeal from the Judgment of Sentence May 24, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013009-2011

BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 18, 2015

       Shawn N. Webb appeals from the judgment of sentence of fifteen days

to six months imprisonment after the trial court adjudicated Appellant guilty

of driving under the influence of alcohol, general impairment, with refusal of

a blood alcohol content (“BAC”) test. Appellate counsel has filed a petition

seeking to withdraw his representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), which govern a withdrawal from representation on

direct appeal.     We conclude that, contrary to counsel’s assessment, the

certified record establishes that Appellant did not validly waive his right to

counsel at trial and is entitled to relief. We therefore reverse and remand

for a new trial.




*
    Former Justice specially assigned to the Superior Court.
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      At approximately 2:45 a.m. on August 3, 2010, Philadelphia Police

Officer Stacy Little observed Appellant’s vehicle traveling in the wrong

direction down a one-way street, Church Lane.            When Officer Little

effectuated a stop and approached his vehicle, she detected a strong odor of

alcohol on Appellant’s breath. Appellant’s clothing was in disarray, and his

eyes were bloodshot.      When asked for his license, registration, and

insurance card, Appellant appeared to be in a stupor, had difficultly

complying with the demand, and did not understand simple requests.

Appellant, who also slurred his speech and had an unsteady gait, was

arrested for DUI, and, after being given the appropriate warnings,

subsequently refused BAC testing.    A police witness opined that Appellant

was sufficiently intoxicated that he was incapable of safely operating a motor

vehicle. Based on this proof, Appellant was found guilty of driving under the

influence of alcohol, incapable of safely driving, and refusing a BAC test.

This appeal followed imposition of the above-delineated judgment of

sentence.

      Before we address the questions raised on appeal, we first must

resolve appellate counsel’s request to withdraw.        Commonwealth v.

Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). There are procedural

and briefing requirements imposed upon an attorney who seeks to withdraw

on appeal. The procedural mandates are that counsel must




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            1) petition the court for leave to withdraw stating that,
      after making a conscientious examination of the record, counsel
      has determined that the appeal would be frivolous; 2) furnish a
      copy of the brief to the defendant; and 3) advise the defendant
      that he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court's attention.

Id. at 1032 (citation omitted).

      Our review of counsel’s petition to withdraw reveals that it is compliant

with these directives. Additionally, counsel attached a copy of a letter sent

to Appellant wherein counsel advised Appellant of his right to proceed pro se

or with retained counsel and which operated as a cover letter for the brief

filed in the within appeal. Since we have ascertained that counsel complied

with the procedural requirements of Anders, we now consider whether his

brief satisfies the mandates of Santiago.     In that decision, our Supreme

Court outlined that

      in the Anders brief that accompanies court-appointed counsel's
      petition to withdraw, counsel must: (1) provide a summary of
      the procedural history and facts, with citations to the record; (2)
      refer to anything in the record that counsel believes arguably
      supports the appeal; (3) set forth counsel's conclusion that the
      appeal is frivolous; and (4) state counsel's reasons for
      concluding that the appeal is frivolous. Counsel should articulate
      the relevant facts of record, controlling case law, and/or statutes
      on point that have led to the conclusion that the appeal is
      frivolous.

Santiago, supra at 361.

      In the brief at issue herein, counsel attempts to comply with

Santiago.     However, he incorrectly analyzes the first of two issues



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presented in that document. Specifically, counsel asserts that he identified

two contentions that Appellant potentially could raise on appeal. First, “Did

the trial court err in allowing [Appellant] to proceed to trial while

representing himself?”     Appellant’s brief at 10.   Second, “Was [Appellant]

denied his right to a trial by jury.” Id. at 12.

      While counsel suggests that Appellant’s waiver of counsel was sound,

we disagree. In his brief, counsel fails to outline either the content of the

colloquy or the areas of inquiry set forth in Pa.R.Crim.P. 121, which governs

waiver-of-counsel proceedings. A comparison of the colloquy herein with the

requirements of Pa.R.Crim. 121 reveals that the waiver was invalid.        The

pertinent law follows.

      The Pennsylvania Supreme Court has stated, "The waiver of the right

to counsel must appear from the record to be a knowing and intelligent

decision   made     with     full   understanding     of   the   consequences."

Commonwealth v. Szuchon, 484 A.2d 1365, 1377 (Pa. 1984).                In Von

Moltke v. Gillies, 332 U.S. 708, 724 (1948), the United States Supreme

Court provided guidance as to the minimum information to be disseminated

to the defendant:

      To be valid . . . waiver [of the right to counsel] must be made
      with an apprehension of the nature of the charges, the statutory
      offenses included within them, the range of allowable
      punishments thereunder, possible defenses to the charges and
      circumstances in mitigation thereof, and all other facts essential
      to a broad understanding of the whole matter. A judge can
      make certain that an accused's professed waiver of counsel is

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     understandingly and wisely made only from a penetrating and
     comprehensive examination of all the circumstances under which
     such a plea is tendered.

     In accordance with these principles, Pa.R.Crim. P. 121 outlines the

areas that must be covered to ensure a valid waiver of the right to counsel:

     (A)(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 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.



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Pa.R.Crim.P. 121 (A)(2).

      Additionally, “a waiver colloquy must, of course, always contain a clear

demonstration of the defendant’s ability to understand the questions posed

to him during the colloquy.”    Commonwealth v. McDonough, 812 A.2d

504, 507 n.1 (Pa. 2002). We also observe that our High Court has indicated

that it is incumbent upon the trial court to ensure that it conducts the proper

colloquy once a defendant seeks to represent himself. Commonwealth v.

Davido, 868 A.2d 431 (Pa. 2005). The Davido Court outlined:

      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
      (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



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      performed if the defendant has invoked his right to self
      representation.

Id. at 437-38 (footnote omitted; emphasis added).           Thus, the failure to

object at the trial level to a deficient waiver colloquy is not fatal to appellate

review.1

      The following facts are relevant.      Appellant was appointed counsel,

Stephen J. Fleury Jr., from the Defender Association of Philadelphia. At the

inception of trial, Mr. Fleury reported that Appellant told him that he “does

not wish my services.”       N.T. Trial (Waiver), 5/24/12, at 3.        Appellant

confirmed that he wanted to represent himself. The Court queried, “Did Mr.

Fleury discuss with you the problems and the possible pitfalls you face if you

do that?” Id. at 4. Appellant answered, “No, he didn’t.” Id.

      The trial court first determined that Appellant was capable of

understanding the proceedings.       It ascertained that Appellant was forty-

eight years old, had attended some college, could read and write English,

was not under the influence of drugs or alcohol, was never treated for

mental illness, and was not receiving psychiatric care. Id. at 6-8. Next, the

trial court informed Appellant that he had the right to court-appointed

counsel:

      THE COURT: Do you understand you have a right to be
      represented by counsel in this hearing?


1
   In light of this precedent, the trial court’s observation that Appellant’s
counsel did not object to the sufficiency of the waiver colloquy is inapt.

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     ....

     THE DEFENDANT: Yes.

     THE COURT: Okay. And if you cannot afford a lawyer counsel
     would be appointed for you. Do you understand that?

     THE DEFENDANT: Somewhat, yes.

     THE COURT: What do you mean somewhat?                  You either
     understand or you don’t understand.

     THE DEFENDANT: I mean, you [are] saying that they would be
     appointed for me?

     THE COURT: That’s Mr. Fleury sitting next to you.

     THE DEFENDANT: Yes. I don’t want to have him. I’m saying I
     don’t want somebody to be appointed for me.

     THE COURT: All right. But you understand that if you couldn’t
     afford a lawyer the Court would appointment [sic] a lawyer to
     represent you. Do you understand that?

     THE DEFENDANT: Yes.

Id. at 8-9.   Then, the court stated, “Sir, if you decide to proceed without

counsel, do you understand that you will be bound by all normal rules and

procedures for a trial such as this?    Do you understand that?”    Id. at 9.

Appellant represented that he understood that information. Id. at 10.

     The court informed Appellant next that there were “certain advantages

to being represented by counsel and those advantages are having a

professional who has had years of experience with trials such as this and

having a professional argue the law and evidence both orally and in written

memorandums [sic].”     Id. at 11.     Appellant said that he understood that

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there was an advantage to having a lawyer represent him and that “by

proceeding without counsel,” he would relinquish those advantages.          Id.

The court also asked, “Do you understand that if an issue is not raised

during this trial or if it is not raised in a proper manner it may be waived and

you may not ever be able to raise it again?” as well as, “And you understand

that you are stuck with whatever mistakes you make while you’re

representing yourself.” Id. at 12. Appellant responded that he understood.

Finally, the court ascertained that no one was forcing or threatening

Appellant to relinquish his right to be represented by Mr. Fleury and that

nothing was promised to him in exchange for his waiver of counsel.          The

colloquy concluded.

      Thus, the record reveals that the trial court properly determined that

Appellant was able to understand the questions posed to him during the

colloquy. The record also demonstrates that, as required by Pa.R.Crim.P.

121(A)(2)(a), Appellant was told that he possessed the right to be

represented by court-appointed counsel.       Additionally, the trial court, as

required by Pa.R.Crim.P. 121(A)(2)(d), clarified to Appellant that he would

be bound by all the normal rules of procedure and that counsel would be

familiar with these rules.

      However, the court only tangentially touched on the subject matter

outlined in 121(A)(2)(e) and (f). The court did explain that Appellant could

waive issues and would be bound by his own missteps, but the court failed

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to specify that there were possible defenses to the charges, of which counsel

might be aware, and that those defenses would be permanently lost if not

raised at trial.   Similarly, it did not set forth that, in addition to defenses,

Appellant had many rights that, if not timely asserted, might be permanently

lost.   Finally, the court did not comply to any extent with Pa.R.Crim.P.

121(A)(2)(b) and (c) in that it did not discover either if Appellant understood

the nature and elements of the charges or if Appellant was aware of the

permissible range of sentences and/or fines.

        We recently addressed whether a waiver of counsel was valid in

Commonwealth v. Phillips, 93 A.3d 847 (Pa.Super. 2014). Therein, the

defendant was appointed counsel and, after becoming dissatisfied with his

representation, asked to proceed pro se.         The defendant was colloquied

three times: at the hearing on his motion to proceed pro se, before his

suppression hearing, and at trial just prior to jury selection. During the first

colloquy, the court neither outlined the elements of the crimes nor informed

the defendant that there were certain defenses that would be lost if not

raised. At the second colloquy, the court merely told the defendant that if

he waived counsel, he would still be bound by all the applicable rules of

procedure, with which counsel would be familiar.           Finally, at the trial

colloquy, the court did not ensure that the defendant understood the

permissible range of sentences for the charged offenses.            In all three




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instances, each court neglected to ascertain the defendant’s age, educational

background, or comprehension abilities.

     We held, “Failure to conduct a thorough on-the-record colloquy before

allowing a defendant to proceed to trial pro se constitutes reversible error.”

Id. at 853. We noted that, in this context, we are not permitted to apply a

totality of the circumstances analysis.       We ruled that since the oral

colloquies in question were all inadequate in some respect, the defendant did

not validly waive counsel, and his convictions had to be reversed.

     Likewise, in Commonwealth v. Clyburn, 42 A.3d 296 (Pa.Super.

2012), we reversed and remanded for a new trial where the trial court did

not conduct a Pa.R.Crim.P. 121-compliant colloquy before allowing the

defendant to proceed pro se. Therein, the defendant signed a written form

examining most areas that must be covered under the law, but it did not

outline the nature and elements of each offense charged against the

defendant.   The same deficit occurred during the oral colloquy, where the

crimes were merely listed and the focus was on the grading and range of

sentences.    Since neither the written form nor oral colloquy apprised the

defendant of the nature and elements of each charge leveled against her, we

concluded    that   the   waiver   colloquy   was   defective.       See   also

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 by the




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rules of criminal procedure] and in doing so must formally question the

defendant on the six listed areas.”).

      In this case, the colloquy completely omitted two areas of inquiry: an

explanation of the nature and elements of the crime and the permissible

range of sentences.      The trial court also failed to fully cover the waiver

problem involved with self-representation. Appellant never was told that, by

proceeding pro se, he could forfeit defenses and rights about which his

lawyer would be versed. Hence, counsel on appeal has incorrectly asserted

that Appellant validly waived his right to counsel at trial and cannot be

permitted to withdraw.

      Since Appellant is unequivocally entitled to relief, it is unnecessary to

remand for the filing of a merits brief.        To do so would merely delay this

matter further. Instead, we vacate the judgment of sentence and remand

for   a   new   trial.   Commonwealth           v.   Goodenow,       741   A.2d   783,

788 (Pa.Super.      1999)   (counsel    seeking      to   withdraw   under   Anders

incorrectly asserted that defendant had no grounds to withdraw guilty plea;

presentence request to withdraw guilty plea should have been granted under

controlling case law; rather than require counsel to file a merits brief, we

vacated defendant’s judgment of sentence and remanded for appointment of

new counsel).




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       The Petition to Withdraw filed by Owen W. Larrabee, Esquire is denied.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/18/2015




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