J-S17016-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                         Appellee

                    v.

ERIC WARREN BIEBER

                         Appellant                   No. 904 MDA 2019


            Appeal from the Judgment of Sentence May 7, 2019
              In the Court of Common Pleas of Tioga County
             Criminal Division at No: CP-59-CR-0000331-2017

BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                            FILED JULY 23, 2020

      Appellant, Eric Warren Bieber, appeals from his judgment of sentence

of 11½-23 months’ imprisonment for carrying firearms without a license and

concurrent sentences for harassment. Appellant argues in this direct appeal

that the trial court erred by permitting him to represent himself during trial

without obtaining his knowing, voluntary, and intelligent waiver of counsel.

We agree with Appellant that his waiver of counsel was inadequate because

the court failed to ensure that Appellant understood the elements of the

firearms and harassment charges. Accordingly, we reverse and remand for

further proceedings on these charges.

      Appellant was charged in a 21-count information with four counts of

aggravated assault, four counts of terroristic threats, four counts of simple

assault, four counts of reckless endangerment, four counts of harassment and
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one count of carrying firearms without a license.1 During a pretrial hearing

on January 8, 2018, Appellant advised the court that he wanted to represent

himself at trial. The following colloquy took place:

       THE COURT: Okay. Do you understand [] the nature of the
       charges and the elements of those charges? Do you understand
       what it is the state has accused you of, and what it is they would
       have to prove if this case went to trial?

       APPELLANT: Yes, your Honor.

       THE COURT: All right. Have you received a copy of the criminal
       information?

       APPELLANT: The discovery —

       THE COURT: — the charging document?

       APPELLANT: The, the charges themselves? Yes.

       THE COURT: Well, there would be a complaint filed, that would
       have been filed by the police that . . . usually has several pages
       and gives dates, and times, and locations, and then a kind of an
       affidavit. And then there’s a separate document that the District
       Attorney has to sign a criminal information that lists all the
       charges. Do you have those?

       APPELLANT: Yes.

       THE COURT: Okay. And then I take it you’ve had a chance to look
       at them so, you, you can in fact understand what the charges are?

       APPELLANT: Yes, your Honor.

       THE COURT: Okay. Now, you are charged with a total of 21, it
       looks like 21 total counts in this information. The first 4 charges
       are all felonies of the second degree. In the Commonwealth of
       Pennsylvania, a person who is convicted of a felony of the second-
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118 Pa.C.S.A. §§ 2702(a)(4), 2706(a)(1), 2701(a)(2), 2705, 2709(a)(1), and
6106(a)(1), respectively.

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     degree can be sentenced to serve up to 10 years of incarceration
     and be ordered to pay up to a S25,000.00 fine, and that would be
     on each of the second-degree felonies. Do you understand that?

     APPELLANT: Yes.

     THE COURT: All right. There are then, at counts, I believe 5
     through 8, there are . . . 5 charges that are treated as
     misdemeanors of the first-degree; those are a terroristic threats
     charge. A first-degree misdemeanor in the Commonwealth is
     punishable by a maximum of 5 years of incarceration and up to a
     $10,000.00 fine on each count. Do you understand that, sir?

     APPELLANT: Yes, your Honor.

     THE COURT: All right.       The next 8 counts in the criminal
     information are all graded as misdemeanors of the second-degree
     and they are 4 counts of simple assault, and then 4 counts of
     endangering another person. Misdemeanors of the second-degree
     are each punishable by up to 2 years of incarceration, and up to
     a $5,000.00 maximum fine. Do you understand that?

     APPELLANT: Yes.

     THE COURT: All right. And then there are charges that are graded
     as summary offenses. Summary offenses in the Commonwealth
     are punishable by . . . a maximum of 90 days of incarceration,
     and a maximum of $300.00 fine. Do you understand that?

     APPELLANT: Yes.

     THE COURT: And the final count is a charge relating to firearms
     and licenses, and that’s a third degree felony. That, as a third-
     degree felony, a person could be, who’s convicted, could be
     sentenced up to 7 years of incarceration and ordered to pay a total
     of $15,000.00 in fines. Do you understand that?

     APPELLANT: Yes.

     THE COURT: All right. Now, I will tell you right here and now, I
     did not add up what all those numbers are, but do you understand
     that in the worst possible scenario for you, you could be, if you
     were convicted of every charge, . . . all those sentences could be
     stacked and run consecutively.

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     APPELLANT: Yes, I do.

     THE COURT: And [that] looks like about 84 years total time. Do
     you understand that?

     APPELLANT: Yes.

     THE COURT: And well over $100,000.00 in fines.            Do you
     understand that?

     APPELLANT: Yes, I do.

N.T., 1/8/18, at 2-5. Appellant signed a form waiving his right to counsel.

The form inquired, “Do you understand the nature of the charges against you

and the elements of these charges?”       Waiver of Counsel Form, 1/8/18.

Appellant answered “yes” and signed his initials next to this answer. Id. The

court permitted Appellant to represent himself. N.T., 1/8/18, at 8.

     On the first day of trial, February 6, 2019, a second judge conducted

another colloquy with Appellant concerning the issue of representation.

Noting that Appellant had signed a waiver of representation one year earlier

on January 8, 2018, the judge stated, “I just wanted to go through this with

you again.” N.T., 2/6/19, at 1. The following colloquy took place:

     THE COURT: Do you understand the charges against you?

     APPELLANT: Yes.

     THE COURT: Four counts of aggravated assault, four counts of
     simple assault, four counts of reckless endangerment and four
     counts of terroristic threats, plus some summary charges that the
     Court decides at the appropriate time. [So] you understand those
     charges and . . . you understand the allegations against you?

     APPELLANT: Yes, I do.

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     THE COURT: Very well. Are you aware of the range of potential
     sentences for these various offenses?

     APPELLANT: Yes, I am.

     THE COURT: All right. In other words, the aggravated assaults
     are each felonies of the second degree, each punishable by up to
     ten years. The simple assaults are misdemeanors of the second
     degree, they are each punishable by up to two years. The
     terroristic threats are misdemeanors of the first degree, each
     punishable by up to five years. And I just want to make sure you
     understand the potential maximum sentences.

     APPELLANT: Yes.

     THE COURT: Very well.

Id. at 1-2. The court also advised Appellant that his firearms charge was a

third degree felony for which the maximum sentence was seven years’

imprisonment. Id. at 3.

     The court accepted Appellant’s waiver of counsel, and Appellant

represented himself during trial. The jury found Appellant not guilty of all

felony and misdemeanor charges except the firearms charge. The judge found

Appellant guilty of the four summary offense charges of harassment.

     Prior to sentencing, counsel entered his appearance for Appellant. On

May 7, 2019, the court imposed sentence. Through counsel, Appellant filed

timely post-sentence motions but later withdrew them. Appellant then timely

appealed to this Court. Counsel for Appellant filed a timely Pa.R.A.P. 1925

statement of errors complained of on appeal but failed to argue therein that




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Appellant did not knowingly, voluntarily and intelligently waive his right to

counsel.

      Appellant filed a motion in this Court seeking a remand to the trial court

for the purpose of filing a supplemental Rule 1925 statement. On November

20, 2019, this Court granted Appellant’s motion for remand.        On remand,

Appellant filed a supplemental Rule 1925(b) statement contending that his

waiver of counsel on the day of trial was invalid because the court failed to

describe the elements of each offense during the waiver colloquy. The trial

court filed a supplemental opinion on this subject acknowledging its failure to

describe the elements of the charges but arguing that Appellant suffered no

prejudice.

      Appellant raises a single issue in this appeal: “Whether the trial court

violated Appellant’s Sixth Amendment right to counsel by failing to conduct an

adequate colloquy with Appellant as to the elements of the offenses charged

against him?” Appellant’s Brief at 4. This argument is moot with regard to

the charges on which Appellant was acquitted: aggravated assault, simple

assault, reckless endangerment and terroristic threats. Commonwealth v.

Booth, 435 A.2d 1220, 1226 (Pa. Super. 1981) (claimed defects in certain

counts of criminal complaint were moot where defendant was acquitted on

these charges). We consider this argument only in relation to the charges on

which Appellant was found guilty, the firearms and harassment charges.




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      A criminal defendant’s right to counsel is guaranteed by the Sixth

Amendment to the United States Constitution and Article I, Section 9 and

Article V, Section 9 of the Pennsylvania Constitution.   Commonwealth v.

Clyburn, 42 A.3d 296, 298 (Pa. Super. 2012). Not only does this right apply

to capital offenses, felonies and misdemeanors, but also it applies to summary

offenses, such as the harassment charges in the present case, “when there is

a likelihood that imprisonment will be imposed.” Commonwealth v. Smith,

868 A.2d 1253, 1256 (Pa. Super. 2005).

      A defendant has a well-settled constitutional right to dispense with

counsel and defend himself before the court. Clyburn, 42 A.3d at 298. Denial

of a defendant’s right to proceed pro se is not subject to harmless error

analysis on direct appeal. Id.; Commonwealth v. Isaac, 205 A.3d 358, 367

(Pa. Super. 2019).

      When a defendant waives his right to counsel and elects to defend

himself, Pa.R.Crim.P. 121 requires the court to conduct a “probing inquiry” on

a series of subjects with the defendant in order to determine whether his

waiver is knowing, voluntary and intelligent. Clyburn, 42 A.3d at 299. One

of these subjects is “that the defendant understands the nature of the charges

against the defendant and the elements of each of those charges.”

Pa.R.Crim.P. 121(A)(2)(b).    We have repeatedly emphasized that “it is

incumbent on the court to fully advise the accused [of the nature and elements

of the crime] before accepting waiver of counsel.” Clyburn, 42 A.3d at 299


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(citing Commonwealth ex rel. Clinger v. Russell, 213 A.2d 100, 102 (Pa.

Super. 1965)). “Failure to conduct a thorough, on-the-record colloquy before

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

Id. at 300-01; see also Commonwealth v. Houtz, 856 A.2d 119, 124

(“penetrating and comprehensive colloquy” is “mandated”). Furthermore, our

scope of review is narrow. We cannot take the totality of circumstances into

account, such as the defendant’s familiarity with the criminal justice system

or quality of his self-representation, in determining whether he properly

waived his right to counsel. Clyburn, 42 A.3d at 302 n.3; Houtz, 856 A.2d

at 125. We consider only whether the trial court “compl[ied] with the dictates

of Rule [121].” Houtz, 856 A.2d at 125.

      Furthermore, “we have long stated that a signed statement alone cannot

establish that a defendant has effectively waived [his] right [to counsel].” Id.

at 300 (citing Russell, 213 A.2d at 101). An “appropriate oral colloquy” must

accompany a written waiver.

      One must bear in mind that an accused will often sign such a
      prepared statement at a time when he is subject to the conflicting
      pressures inherent in all accusatory proceedings. In the absence
      of sufficient oral inquiry, such a signed statement will not
      adequately demonstrate that the accused comprehended and
      assented to the contents of the writing. The court must examine
      the accused’s awareness of the nature of the crime, the range of
      allowable punishments thereunder, and all other facts essential to
      a broad understanding of the whole matter.          Only at the
      completion of such a comprehensive inquiry, can the court be
      confident that the defendant intelligently waived his right to
      counsel.

Id.

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      In Clyburn, we held that the defendant’s waiver of counsel was

inadequate under Rule 121 even though the defendant signed a written waiver

of counsel form and received a hearing before the trial judge concerning her

waiver.   When the defendant advised the court that she was representing

herself at trial, she signed a written waiver of counsel form that stated, “I

understand the nature of the charges against me and the elements of each of

those charges,” id. at 301, virtually identical to the language used in the

waiver form in the present case. We described the form as “perfunctory” and

concluded that “[t]he waiver form . . . failed to specify the charges brought

against Appellant and the elements of each charge.”       Id.   We held that

“without sufficient oral inquiry, the signed statement did not adequately

demonstrate that Appellant “comprehended and assented to the contents of

the writing.” Id. Moreover, during the waiver of counsel hearing, the court

directed the prosecutor to explain the nature of the charges. The prosecutor

listed the charges, the grading of each offense, and the permissible sentence

and guidelines range for each charge. Id. The prosecutor did not, however,

“specify the nature and elements of each of those charges.” Id. We vacated

the defendant’s judgment of sentence and remanded for a new trial, stating,

“[N]either in the written waiver of counsel form, nor in the oral colloquy did

the trial judge or issuing authority elicit information from Appellant that

adequately demonstrates she understood the nature of the charges against

her and the elements of each of those charges.” Id.


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      In this case, Appellant argues that his waiver of counsel on the first day

of trial, February 6, 2019, was invalid.     The Commonwealth counters that

Appellant validly waived counsel during the January 8, 2018 pretrial hearing,

and that his waiver remained effective throughout the remainder of the case,

including trial. Commonwealth’s Brief at 6. It is true that “once a defendant

has made a competent waiver of counsel, that waiver remains in effect

through all subsequent proceedings in that case absent a substantial change

in circumstances.”   Commonwealth v. Phillips, 141 A.3d 512, 521 (Pa.

Super. 2016). Accordingly, we will analyze whether Appellant validly waived

his right to counsel either during the January 8, 2018 hearing or at the

beginning of trial on February 6, 2019.

      During the January 8, 2018 hearing, Appellant signed a form that asked,

“Do you understand the nature of the charges against you and the elements

of these charges?” This was not a valid waiver of counsel, because this text

was practically identical to the text we found insufficient in Clyburn. Nor did

Appellant validly waive counsel during the colloquy with the court. The court

asked Appellant whether he had copies of the information and criminal

complaint, and Appellant answered that he did.        The five-page, 21-count

information listed the elements of, and described the nature of, each count.

The court asked whether Appellant “had a chance to look at [the complaint

and information] so [you] in fact understand what the charges are.” N.T.,

1/8/18, at 3. Appellant responded in the affirmative. Even so, it is impossible


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to tell whether Appellant reviewed the firearms and harassment counts on the

third and fourth pages of the densely-worded information or understood the

nature and elements of those counts.               Furthermore, the court did not

expressly mention that Appellant was charged with harassment2 or verbally

review the nature and elements of the firearms or harassment charges3 with

Appellant.    Thus, the colloquy was not penetrating or thorough enough to

satisfy the dictates of Rule 121.

       Nor was Appellant’s waiver of counsel on the first day of trial

satisfactory, because once again, the court failed to expressly mention that

Appellant was charged with harassment offenses and failed to discuss the

nature or elements of the firearms and harassment charges with Appellant.

N.T., 2/6/19, at 1-2.

       The trial court acknowledges that Appellant has a “strong” argument but

insists that Appellant suffered no prejudice from the court’s failure to describe



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2 The court simply stated that the information included several summary
offense charges. Id. at 3-4.

3  For example, the court failed to state the elements of the firearms charge,
i.e., that Appellant “carried a firearm in a vehicle, or carried a firearm
concealed on or about his . . . person, except in his . . . place of abode or fixed
place of business, without a valid and lawfully issued license under the
[U]niform [F]irearms [A]ct. . .” Information, Count 21. Nor did the court
state the nature of this offense, i.e., that “on or about [August 2,] 2017,”
Appellant “did carry a firearm, namely a Stoeger Cougar Model 8040F, .40
caliber pistol, in a vehicle or concealed on or about his person, while outside
his abode or fixed place of business without a valid and lawfully issued
license.” Id.

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the elements of the firearms charge, because “[Appellant’s] defense at trial

indicated a complete understanding of the offense, as he argued that the

weapon in question was subject to a hunting exception so that a concealed

carry permit was not necessary.” Supplemental Opinion, 1/2/20, at 1. We

disagree for several reasons. On direct appeal,

       there is no need for a showing of prejudice when a defendant
       proceeded to trial without a legally sufficient waiver of her
       constitutional right to counsel. See Commonwealth v. Brazil,
       [] 701 A.2d 216 ([Pa.] 1997) (granting new trial for defective
       waiver colloquy without analyzing whether the appellant suffered
       prejudice); Houtz, 856 A.2d at 130 (same).

Clyburn, 42 A.3d at 302 n.3.4 Thus, even if Appellant suffered no prejudice

at all, he is still entitled to relief due to the defective waiver of counsel

colloquy. Further, our precedents instruct that we cannot take the quality of

Appellant’s self-representation into account but must focus solely on whether

the court complied with Rule 121 during the waiver of counsel hearing. Id.

For the reasons given above, the court failed to comply with Rule 121 during

either waiver hearing in this case.

       Accordingly, we must grant Appellant a new trial on the firearms and

harassment charges.          We vacate his judgment of sentence on these

convictions and remand for a new trial.



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4 In contrast, in a PCRA proceeding, proof of prejudice would be necessary.
Isaac, 205 A.3d at 367 (prejudice not presumed at PCRA stage where
petitioner alleges ineffective assistance of counsel for failing to object to
defective waiver colloquy concerning right to counsel at trial).

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     Judgment of sentence vacated on firearms and harassment convictions.

Case remanded for further proceedings. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/23/2020




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