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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
PHILOME CESAR,                            :         No. 1718 EDA 2015
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, May 12, 2015,
                in the Court of Common Pleas of Lehigh County
              Criminal Division at Nos. CP-39-CR-0005299-2010,
              CP-39-CR-0005301-2010, CP-39-CR-0005302-2010


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 20, 2016

        Philome Cesar appeals from the order of May 12, 2015, denying his

PCRA1 petition. We affirm.

        Following a jury trial, appellant was found guilty of 19 counts of

robbery and 1 count of providing false identification to law enforcement.

Appellant was sentenced to an aggregate of 95 to 190 years’ incarceration.

On direct appeal, this court summarized the history of this matter as follows:

              A jury convicted [appellant] of committing nineteen
              separate armed robberies of Lehigh County
              convenience stores, hotels, and other commercial
              establishments.    [Appellant] displayed a firearm,
              threatening and terrorizing the victims with it during
              the crimes.    After a months-long robbery spree,
              [appellant]   was    ultimately   apprehended     and
              discovered to be in possession of items stolen from

1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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              several victims, as well as clothing matching the
              description of that worn by the perpetrator of these
              numerous offenses. Other physical evidence directly
              tied [appellant] to several of the robberies, and as all
              of the crimes had a similar modus operandi, the
              jury found [appellant] guilty of committing all
              nineteen robberies.       [Appellant]’s conviction of
              providing false identification to law enforcement was
              based on his giving officers a false name at the time
              of his arrest.

                    The sentencing court reviewed a presentence
              report and, on December 20, 2011, the court held a
              sentencing hearing. Following the hearing, the court
              sentenced [appellant] to a mandatory term of five to
              ten years’ incarceration for each of his nineteen
              robbery convictions, for an aggregate term of 95 to
              190 years’ imprisonment. The court imposed the
              mandatory sentence because during each offense,
              [appellant] brandished a firearm, placing his victims
              in fear of death or serious bodily injury.       See
              42 Pa.C.S. § 9712(a).     [Appellant] filed a timely
              notice of appeal, as well as a timely concise
              statement of matters complained of on appeal
              pursuant to Pa.R.A.P. 1925(b).[Footnote 1]

                    [Footnote 1] We note that during his trial
                    and sentencing hearing, [appellant]
                    chose to represent himself with the
                    assistance of court-appointed standby
                    counsel.     However, following the
                    imposition of his sentence, [appellant]
                    moved for appointment of counsel to
                    represent him on appeal, which the court
                    granted.    Accordingly, [appellant] is
                    represented by counsel in this appeal.

Commonwealth v. Cesar, 75 A.3d 564, 2013 WL 11267500 at *1

(Pa.Super. 2013) (unpublished memorandum), appeal denied, 77 A.3d 635

(Pa. 2013).




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      On April 25, 2013, a divided panel of this court affirmed the judgment

of sentence; and on October 10, 2013, our supreme court denied appellant’s

petition for allowance of appeal.2 Id. This timely petition for post-conviction

collateral relief was filed on July 25, 2014. Counsel was appointed and filed

an amended petition on appellant’s behalf on December 11, 2014. Therein,

appellant raised two issues: 1) that the 5 to 10-year mandatory minimum

sentences   imposed     pursuant    to   42   Pa.C.S.A.   §   9712(a)     were

unconstitutional in light of Alleyne v. United States,          U.S.     , 133

S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Commonwealth v. Newman, 99

A.3d 86 (Pa.Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.

2015); and 2) that appellant’s waiver of counsel colloquy was inadequate.

Following an evidentiary hearing held on April 17, 2015, at which appellant

and trial counsel, Richard Webster, Esq., testified, the PCRA court granted



2
   On direct appeal, among other issues, appellant challenged the
discretionary aspects of sentencing, alleging that the consecutive nature of
his sentences resulted in a manifestly excessive aggregate term of
imprisonment in light of his individual circumstances. Judge Lazarus, in a
memorandum decision joined by Judge Colville, affirmed, finding that the
sentence imposed was not “clearly unreasonable” within the meaning of
42 Pa.C.S.A. § 9781(d) and reflected the sentencing court’s meaningful
consideration of the facts of the crimes and appellant’s character, including
that appellant terrorized nineteen victims and an entire community for a
whole summer. Id. at *6-7. President Judge Emeritus Bender filed a
dissenting memorandum, opining             that appellant’s sentence     was
“clearly unreasonable” within the meaning of the Sentencing Code where it
amounted to a life sentence and appellant did not inflict any physical harm
on any of the victims. Id. at *24. Judge Bender also concluded that the
sentencing court failed to consider appellant’s history, personal
characteristics, and need for rehabilitation. Id.


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the petition in part, and denied it in part. The PCRA court granted appellant

a new sentencing hearing pursuant to Alleyne; however, the court denied

appellant a new trial on appellant’s claim that his waiver of trial counsel

colloquy was inadequate.    To the contrary, the PCRA court found that the

oral waiver colloquy, together with the written waiver of counsel form,

clearly established the voluntary, knowing, and intelligent nature of the

relinquishment of appellant’s right to be represented by counsel. (Opinion

and Order, 5/12/15 at 7.)      The PCRA court determined that appellant’s

testimony at the PCRA hearing was not credible and that appellant realized

after the guilty verdict that, in hindsight, his decision to represent himself

was not in his best interest. (Id. at 7-8 n.4.) This timely appeal followed.3

      Appellant has raised the following issue for this court’s review:

“Whether the court erred in finding waiver of counsel was knowing,

voluntary and intelligently made where [appellant] was not apprised of his

ability to rescind the waiver and request representation by counsel?”

(Appellant’s brief at 6.)

      Initially, we note our standard of review:

            Our standard of review of a PCRA court’s dismissal of
            a PCRA petition is limited to examining whether the
            PCRA court’s determination is supported by the
            evidence of record and free of legal error.
            Commonwealth v. Ceo, 812 A.2d 1263, 1265

3
  On June 12, 2015, appellant was resentenced to an aggregate of 95 to
190 years’ imprisonment.       Appellant filed a separate appeal from the
June 12, 2015 judgment of sentence at No. 1853 EDA 2015. However, no
issue is being raised as to resentencing.


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           (Pa.Super.2002) (citation omitted). Great deference
           is granted to the findings of the PCRA court, and
           these findings will not be disturbed unless they have
           no support in the certified record. Commonwealth
           v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001)
           (citation omitted).

Commonwealth       v.   Wilson,   824   A.2d   331,   333   (Pa.Super.    2003)

(en banc), appeal denied, 839 A.2d 352 (Pa. 2003).

           To be entitled to PCRA relief, a petitioner must
           establish, by a preponderance of the evidence, his
           conviction or sentence resulted from one or more of
           the errors found in 42 Pa.C.S. § 9543(a)(2), his
           claims have not been previously litigated or waived,
           id., § 9543(a)(3), and “the failure to litigate the
           issue prior to or during trial, during unitary review or
           on direct appeal could not have been the result of
           any rational, strategic or tactical decision by
           counsel.” Id., § 9543(a)(4). An issue is previously
           litigated if “the highest appellate court in which the
           petitioner could have had review as a matter of right
           has ruled on the merits of the issue . . . .” Id.,
           § 9544(a)(2). An issue is waived “if the petitioner
           could have raised it but failed to do so before trial, at
           trial, during unitary review, on appeal, or in a prior
           state postconviction proceeding.” Id., § 9544(b).

Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 2012).                 It is well

established that ordinary claims of trial court error are waived on PCRA

review, unless they are properly layered in terms of counsel ineffectiveness.

Commonwealth       v.   Williams,    950    A.2d    294,    308   (Pa.   2008);

Commonwealth v. Reyes, 870 A.2d 888, 895-896 (Pa. 2005).

     Appellant argues that the trial court failed to conduct a complete

waiver of counsel colloquy as required by Pa.R.Crim.P. 121 where he was

never informed of his right to rescind the waiver and request stand-by


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counsel to take over.   According to appellant, he mistakenly believed that

once trial had begun, he had to continue pro se and could not request

assistance of counsel. (Appellant’s brief at 19-20.)

            The right to counsel in a criminal proceeding is a
            fundamental right guaranteed by the Sixth
            Amendment of the United States Constitution and
            Article One, Section Nine of the Pennsylvania
            Constitution. Faretta v. California, 422 U.S. 806,
            95    S.Ct.   2525,    45    L.Ed.2d  562    (1975);
            Commonwealth v. Szuchon, 506 Pa. 228, 484
            A.2d 1365 (1984).       A defendant may, however,
            waive this fundamental right and proceed with his
            defense pro se. Faretta, 422 U.S. at 835, 95 S.Ct.
            2525; Szuchon, 484 A.2d at 1377. If a defendant
            desires to do so, he must petition the court and the
            court must follow the appropriate legal procedure for
            securing a valid waiver of counsel.

Commonwealth v. McDonough, 812 A.2d 504, 506 (Pa. 2002).

            Rule 121 of the Pennsylvania Rules of Criminal
            Procedure governs waiver of counsel proceedings
            and states in relevant part, “When a defendant seeks
            to waive the right to counsel after the preliminary
            hearing, the judge shall ascertain from the
            defendant, on the record, whether there is a
            knowing, voluntary, and intelligent waiver of
            counsel.” Pa.R.Crim.P. 121(c). To ensure that a
            waiver of counsel is knowing, voluntary, and
            intelligent, the following information must be elicited
            from the defendant: (1) whether the defendant
            understands that he has a right to be represented by
            counsel and the right to free counsel if he is indigent,
            (2) whether the defendant understands the nature of
            the charges against him and the elements of each of
            those charges, (3) whether the defendant is aware of
            the permissible range of sentences and/or fines for
            the offenses charged, (4) whether the defendant
            understands that if he waives the right to counsel he
            will still be bound by all the normal rules of
            procedure and that counsel would be familiar with


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            these rules, (5) whether the defendant understands
            that there are possible defenses to these charges to
            which counsel might be aware, and if these defenses
            are not raised they may be lost permanently, and
            (6) whether the defendant understands that, in
            addition to defenses, the defendant has other rights
            that, if not timely asserted, may be lost permanently
            and that if errors occur and are not objected to or
            otherwise timely raised by the defendant, the
            objection to these errors may be lost permanently.
            See Commonwealth v. Starr, 541 Pa. 564, 664
            A.2d 1326, 1335 (1995); Pa.R.Crim.P. 121 cmt.

McDonough, 812 A.2d at 506-507 (footnote omitted).

      We agree with the Commonwealth that this issue is waived. Appellant

did not raise this issue on direct appeal, nor has he alleged ineffective

assistance of direct appeal counsel for failing to raise the issue. Whether the

trial court erred by allegedly failing to conduct a thorough waiver of counsel

colloquy in compliance with Pa.R.Crim.P. 121 was cognizable on direct

appeal. Therefore, the issue is waived. 42 Pa.C.S.A. § 9544(b).

      Furthermore, the record belies appellant’s contention. The trial court

conducted a thorough and complete waiver of counsel colloquy, addressing

each of the six areas required by Pa.R.Crim.P. 121.      (Notes of testimony,

11/14/11 at 3-10.)    Appellant also signed a written waiver form.     (Id. at

10.) Appellant has cited no authority for the proposition that the trial court

was required to specifically advise him that he could rescind his decision to

waive counsel at any time and ask standby counsel to take over. However,

as the trial court observes, appellant’s argument in this regard is

undermined by the fact that after appellant waived counsel, he asked


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Attorney   Webster     to   litigate   his    pre-trial   motions   including   a

Pa.R.Crim.P. 600 speedy trial motion and a motion in limine to exclude

shoeprint evidence.    (Id. at 18-28.)       Appellant’s testimony at the PCRA

evidentiary hearing that he was unaware he could withdraw his waiver of

counsel and proceed with standby counsel during trial was found not to be

credible by the PCRA court. The record indicates that appellant knowingly,

voluntarily, and intelligently decided to waive counsel and proceed pro se.

He was simply dissatisfied with the result.       Therefore, even if this matter

were not waived on PCRA review, which it is, we would find it to be without

merit.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2016




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