J-S72008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DARRELL BRAY,

                            Appellant                  No. 119 WDA 2014


            Appeal from the PCRA Order Entered December 18, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015503-2008


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 22, 2014

        Appellant, Darrell Bray, appeals from the December 18, 2013 order

denying his petition for relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we are compelled to

vacate the PCRA court’s order and remand for a new trial.

        The PCRA court set forth the procedural history of this case as follows:

               On March 11, 2011, Appellant … waived his right to a jury
        trial and his right to counsel. After a nonjury trial on the same
        day, Appellant was convicted of Aggravated Assault with a
        Deadly Weapon, Person Not to Possess a Firearm, Carrying a
        Firearm Without a License, Terroristic Threats, Recklessly
        Endangering Another Person, Simple Assault, Disorderly Conduct
        and Criminal Mischief. Appellant elected to waive his right to a
        Pre-Sentence Report and this Court sentenced Appellant to [51]
        to [100] months[’] incarceration on the Aggravated Assault
        count and [60] to [120] months[’] consecutive on the Person Not
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S72008-14


      to Possess count with no further penalty imposed on the
      remaining counts.

             Appellant did not file a Post-Sentence Motion. On April 28,
      2011, Appellant, now represented by the Office of the Public
      Defender, filed a Notice of Appeal. On June 29, 2012, the
      Superior Court of Pennsylvania affirmed on the only issue raised
      on appeal: that the evidence was insufficient to support a guilty
      verdict on the Aggravated Assault count. [Commonwealth v.
      Bray, 53 A.3d 944 (Pa. Super. 2012) (unpublished
      memorandum).] The Supreme Court of Pennsylvania denied the
      Petition for Allowance of Appeal on February 6, 2013.
      [Commonwealth v. Bray, 63 A.3d 1242 (Pa. 2013).]

             On May 23, 2013, Appellant filed, pro se, a … []PCRA[]
      Petition. On December 16, 2013, this Court held an evidentiary
      hearing on the Petition and on December 18, 2013[, it] denied
      the Petition. Appellant filed a Notice of Appeal on January 15,
      2014 and a Concise Statement of Errors Complained of on
      Appeal on February 7, 2014.

PCRA Court Opinion (PCO), 4/21/14, at 2-3.

      On appeal, Appellant presents one question for our review:

      1. Did the [PCRA] Court err in denying [Appellant’s] Petition for
      Post-Conviction Relief when it found the appellate attorney to be
      effective, despite the attorney’s failure to raise a meritorious
      claim regarding the defectiveness of the waiver of counsel
      colloquy, when the Trial Court did not conduct a probing on the
      record colloquy before [Appellant] elected to waive his right to
      counsel?

Appellant’s Brief at 3.

      To begin, we note that “[t]his Court’s standard of review from the

grant or denial of post-conviction relief is limited to examining whether the

lower court’s determination is supported by the evidence of record and

whether it is free of legal error.”   Commonwealth v. Morales, 701 A.2d

516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,



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356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received

ineffective assistance of counsel, our Supreme Court has stated that:

     [A] PCRA petitioner will be granted relief only when he proves,
     by a preponderance of the evidence, that his conviction or
     sentence resulted from the “[i]neffective assistance of counsel
     which, in the circumstances of the particular case, so
     undermined the truth-determining process that no reliable
     adjudication of guilt or innocence could have taken place.”
     Generally, counsel’s performance is presumed to be
     constitutionally adequate, and counsel will only be deemed
     ineffective upon a sufficient showing by the petitioner. To obtain
     relief, a petitioner must demonstrate that counsel’s performance
     was deficient and that the deficiency prejudiced the petitioner. A
     petitioner establishes prejudice when he demonstrates “that
     there is a reasonable probability that, but for counsel’s
     unprofessional errors, the result of the proceeding would have
     been different.” … [A] properly pled claim of ineffectiveness
     posits that: (1) the underlying legal issue has arguable merit;
     (2) counsel’s actions lacked an objective reasonable basis; and
     (3) actual prejudice befell the petitioner from counsel’s act or
     omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

     Appellant avers that his appellate counsel acted ineffectively by not

challenging the validity of the colloquy regarding Appellant’s waiver of his

right to counsel.   Appellant maintains that the waiver was inadequate

because it did not satisfy the requirements set forth in Pennsylvania Rule of

Criminal Procedure 121. That rule states, in relevant part:

     (A) Generally.

        (1) The defendant may waive the right to be represented
        by counsel.

        (2) To ensure that the defendant's waiver of the right to
        counsel is knowing, voluntary, and intelligent, the judge or

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        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.

     (3) The judge or issuing authority may permit the attorney for
     the Commonwealth or defendant's attorney to conduct the
     examination of the defendant pursuant to paragraph (A)(2). The
     judge or issuing authority shall be present during this
     examination.

Pa.R.Crim.P. 121(a).

     In addition, our Supreme Court has directed 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


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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,   300-301     (Pa.    Super.   2012);     see     also

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

      In the instant case, Appellant argues that the trial court’s oral colloquy

regarding his waiver of his right to counsel was inadequate because, while

the court stated the various offenses with which Appellant was charged, and

related the potential maximum sentences he faced for each crime, the court

did not detail the elements of each offense. Moreover, the written colloquy,

filled out by Appellant’s counsel and signed by Appellant, also did not list the

specific charges Appellant faced, or the elements of those offenses.           See

“Waiver of Counsel” Form, 3/11/11, at 1 (unpaginated).          While Appellant

acknowledges that at the PCRA hearing, his trial counsel stated that she

reviewed the elements of each charge with Appellant, he claims that

counsel’s   off-the-record   discussion   was     inadequate   to    satisfy   Rule

121(a)(3)’s requirement that the trial court “shall be present during th[e]

examination.”    Appellant argues that the omission of an on-the-record




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statement of the elements of the charges pending against him invalidated

his waiver of the right to counsel.

      Appellant then avers that appellate counsel was ineffective for not

challenging the validity of his waiver colloquy on direct appeal. He claims

that had counsel done so, this Court would have found the colloquy

inadequate and awarded Appellant a new trial. In support of this assertion,

Appellant relies on Clyburn.    There, we held that Clyburn’s waiver of her

right to counsel was inadequate. Clyburn, 42 A.3d at 301-302. First, we

pointed out that the written colloquy did not “specify the charges brought

against [Clyburn] and the elements of each of those charges.” Id. at 301.

During the oral colloquy, the Commonwealth informed Clyburn of “the

permissible range of sentences and the guideline ranges for each of the

offenses charged[,]” yet at no point was Clyburn informed of “the nature and

elements of each of those charges, as contemplated by Rule 121(A)(2)(b).”

Id.   Accordingly, we concluded that the Rule 121 colloquy was defective,

vacated Clyburn’s judgment of sentence, and remanded for a new trial. Id.

at 299-302 (relying on Commonwealth v. Starr, 664 A.2d 1326, 1335 (Pa.

1995)   (mandating    a   “probing    colloquy”   to   determine   whether   the

defendant’s waiver of his right to counsel is knowing, voluntary, and

intelligent; colloquy requires court to ensure “the defendant understands the

nature of the charges against him and the elements of each of those

charges”); Commonwealth v. Payson, 723 A.2d 695, 701 (Pa. Super.

1999) (holding that failure to conduct a thorough, on-the-record colloquy

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before allowing a defendant to proceed to trial pro se constitutes reversible

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

Super. 1965) (stating it is incumbent on the court to fully advise the accused

of the nature and elements of the crime before accepting waiver of

counsel)).

      We agree with Appellant that the defect in the colloquy in Clyburn is

analogous to the defect in the instant colloquy. In both cases, the written

waiver colloquy did not set forth the specific charges or elements thereof,

and during the oral colloquy, the elements of the charges were not stated.

Moreover, as in Clyburn, nothing in the record of the colloquy proceeding

indicates that the trial court ensured that Appellant was aware of the nature

and elements of the charges pending against him.       Accordingly, Appellant

has convinced us that had appellate counsel challenged the waiver colloquy

on direct appeal, we would have held that the colloquy was inadequate for

the same reasons expressed in Clyburn, and based on the same cases

relied upon therein.

      Next, we must assess whether counsel had any reasonable basis for

not raising this issue. At the PCRA hearing, appellate counsel did not take

the stand. However, the parties stipulated that counsel’s testimony would

be the same as that which was outlined in the “Attorney Certificate”

attached to Appellant’s amended PCRA petition. See Commonwealth’s Brief

at 14 (citing PCRA Hearing, 12/16/13, at 33). That certificate states:




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      On or about October 1, 2013[,] I spoke with Attorney Joshua
      Roberts regarding this matter. Attorney Roberts stated that he
      did not raise the issue [of the deficient waiver of counsel
      colloquy] because he did not notice anything deficient in the
      colloquy, and if there was an issue, he did not think it could be
      dealt with on direct appeal, as it did not appear to violate
      [Appellant’s] due process rights. In addition, Attorney Roberts
      thought that it was a better strategy to focus on the issue he felt
      had a better chance of appellate success and not water down the
      appellate brief with seemingly weaker issues.

Amended Petition, 10/15/13, at 13.

      Based on our discussion of the apparent inadequacy of Appellant’s

waiver colloquy, we conclude that appellate counsel’s claims that he “did not

notice anything deficient in the colloquy,” and that he did not want to “water

down the appellate brief with seemingly weaker issues,” were not reasonable

grounds for counsel’s failure to assert this issue.       Moreover, while the

inadequate waiver may not have constituted a violation of Appellant’s due

process rights, it clearly constituted a violation of his right to representation

by counsel.   Accordingly, counsel did not have a reasonable basis for not

challenging the adequacy of Appellant’s waiver-of-counsel colloquy.

      Finally, we must determine if Appellant was prejudiced by appellate

counsel’s failure to raise this issue. Appellant argues that he was prejudiced

because, had counsel challenged the adequacy of his waiver colloquy on

direct appeal, we would have concluded it was inadequate and remanded for

a new trial. Based on the similarities between the present colloquy and the

colloquy which we deemed inadequate in Clyburn, we agree.




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      We note that the Commonwealth essentially concedes that based on

the record as it existed at the time of Appellant’s direct appeal, this Court

“undoubtedly        would     [have   found]   the   colloquy    inadequate.”

Commonwealth’s Brief at 23-24. Nevertheless, the Commonwealth argues

that Appellant was not prejudiced because the totality of the circumstances

indicate that his waiver of his right to counsel was knowing, intelligent, and

voluntary.       We need not address the specifics of the Commonwealth’s

complex argument because it misconstrues the type of prejudice Appellant

must prove in this case. Appellant is contending that his appellate counsel

acted ineffectively; accordingly, our prejudice analysis must focus on

whether Appellant has shown “that there is a reasonable probability that the

outcome of the proceedings would have been different but for counsel’s

ineffectiveness.”    Commonwealth v. Chmiel, 30 A.3d 1111, 1127-1128

(Pa. 2011).      Based on our discussion, supra, it is apparent had appellate

counsel challenged the waiver colloquy on direct appeal, we would have

concluded that it was inadequate and remanded for a new trial. Therefore,

Appellant has proven that he was prejudiced by appellate counsel’s

ineffective representation.

      Accordingly, we are compelled to conclude that appellate counsel acted

ineffectively.      Therefore, we vacate the PCRA court’s order denying

Appellant’s petition and remand for a new trial.

      Order vacated. Case remanded for further proceedings.       Jurisdiction

relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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