                             [J-30-2018] [MO: Mundy, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


    COMMONWEALTH OF PENNSYLVANIA,               :   No. 736 CAP
                                                :
                       Appellee                 :   Appeal from the Order entered on
                                                :   12/31/2016 in the Court of Common
                                                :   Pleas, Lehigh County, Criminal
                v.                              :   Division, dismissing PCRA relief at
                                                :   No. CP-39-CR-0003716-1996.
                                                :
    JAMES T. WILLIAMS,                          :   SUBMITTED: March 19, 2018
                                                :
                       Appellant                :


                                   CONCURRING OPINION


JUSTICE WECHT                                            DECIDED: November 21, 2018
        I join the learned Majority’s opinion, albeit subject to a caveat. I agree that James

Williams is not entitled to relief upon his claim that stand-by direct appellate counsel,

Daniel Silverman, Esquire, interfered with Williams’ election to represent himself on direct

appeal.1 But I reach this conclusion solely because the issue has been previously litigated

1       The Majority notes that this Court, which had recognized a federal constitutional
right to self-representation on appeal in Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998), since has acknowledged that the right was called into question following the
United States Supreme Court’s opinion in Martinez v. Court of Appeal of California, 528
U.S. 152 (2000). See Maj. Op. at 11 n.7. Our analysis in Grazier relied upon our
interpretation of the Sixth Amendment to the United States Constitution. In Martinez,
however, the Supreme Court held that the Sixth Amendment confers no such right, but
that states were free to find such a right in their own constitutions. In Commonwealth v.
Staton, 12 A.3d 277 (Pa. 2010), this Court acknowledged that it had yet to revisit, in the
wake of Martinez, whether the Pennsylvania Constitution independently confers such a
right; rather, this Court assumed the existence of such a right for purposes of decision.
Whether such a right exists under Pennsylvania law, and whence it derives, remains
undecided. But see Commonwealth v. Figueroa, 29 A.3d 1177, 1182 (Pa. Super. 2011)
(finding that Grazier remains controlling law unless and until this Court overturns it). Like
the Majority and the Staton Court, I assume for present purposes that such a right exists.
and is thus not cognizable under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46

(“PCRA”).

       To obtain collateral relief under the PCRA, a petitioner must demonstrate that “the

allegation of error has not been previously litigated.” 42 Pa.C.S. § 9543(a)(3). For

purposes of the PCRA, “an issue has been 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.” 42 Pa.C.S. § 9544(a)(2). Williams previously argued to this Court

that Silverman had overstepped his authority and usurped Williams’ pro se election during

direct appeal. Specifically, Williams made this claim in his June 9, 2003 “Motion to File

Emergency Amended Pro Se Appeal,” which we denied per curiam on December 23,

2003, and then made it again in his June 27, 2005 Application for Leave to File Post-

Submission Communication (i.e., in the nature of a pro se brief), which we denied per

curiam on November 16, 2005. Accordingly, we may not grant relief now. Accord Maj.

Op. at 12-13.

       My reservations arise from the more expansive aspects of the Majority’s reasoning.

Although the previous litigation bar is sufficient to dispose of the stand-by counsel issue

that Williams presents, the Majority discusses at length and reaffirms the trial court’s

rejection of Williams’ putative claim that Silverman, qua stand-by counsel, rendered

constitutionally ineffective representation. Id. at 9-11. Although the Majority is correct

that no relief will lie for ineffective assistance of stand-by counsel, see id. at 10 (citing

Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012)), it follows a fortiori from our prior

rejections of Williams’ requests to file a pro se brief that Williams had acquiesced entirely

to Silverman’s representation for purposes of Williams’ direct appeal. Thus, any analysis




                             [J-30-2018] [MO: Mundy, J.] - 2
premised upon Silverman’s putative stand-by status is irreconcilable with our prior rulings,

and therefore is gratuitous at best and potentially misleading in its doctrinal implications.2

       The problem arises because the Majority seeks a middle ground in which it

identifies Silverman as stand-by counsel, and thus immune to an ineffectiveness claim,

while implicitly finding that Silverman’s “collaborative” stand-by role was so substantial

that it supplanted Williams’ undisputedly invoked and repeatedly confirmed desire to

direct his own appellate strategy. The Majority writes first that “[i]t is not contested that

[Williams] in this case was acting pro se from the commencement of his direct appeal,”

and later that “the record of [Williams’] direct appeal evidences his status as pro se was

recognized.” Id. at 8 n.6, 11 n.7. However, the Majority then concludes as follows:

       The record of [Williams’] direct appeal with this Court demonstrates that
       [Williams] deferred to stand[-]by counsel to file numerous remand requests
       and motions for extension to file a brief. Thus, the record supports the
       PCRA court’s conclusion that [Williams] approved of stand-by counsel’s
       collaborative assistance in drafting and submitting filings with this Court
       during his direct appeal. The fact that [Williams] objected to the failure to
       include various issues in the appellate brief subsequently submitted[] does


2       Pennsylvania courts long have held that there is no constitutional right to hybrid
representation—i.e., the presentation of filings by both counsel and by the defendant pro
se—at any stage of a proceeding, including on appeal. Commonwealth v. Ellis, 626 A.2d
1137, 1139 (Pa. 1993). Our Court’s direction regarding how to proceed when such dual
filings occur has evolved over the years. See generally Commonwealth v. Jette, 23 A.3d
1032, 1036-1044 (Pa. 2011) (reviewing the evolution of, and ultimately rejecting, what we
styled the Battle procedure, see Commonwealth v. Battle, 879 A.2d 266
(Pa. Super. 2005), because its de facto requirement that counsel assess the merits of
any issues the defendant submitted pro se was in conflict with the various policy interests
served by precluding hybrid representation). Presently, appellate courts refuse to docket
a pro se filing submitted by a counseled defendant, and then forward that filing to counsel
for review. Counsel then may, but is not obligated to, file a motion or supplemental brief
addressing or embodying the concerns raised in defendant’s pro se filing. See id. at 1044.
However, when, as in this case, the defendant credibly contests counsel’s representation
as such, cases like Jette arguably are distinguishable, because in that case and others,
there was no question that the defendant was represented by counsel at the time of his
pro se filing.



                              [J-30-2018] [MO: Mundy, J.] - 3
       not mean that stand[-]by counsel usurped or unduly interfered with
       [Williams’] right of self-representation.

Id. at 12. The Majority thus endorses the conclusion that, insofar as Williams challenges

Silverman’s abandonment of claims on appeal, Williams acquiesced to Silverman’s status

as counsel of record,3 but, to the extent that Williams asserts the ineffectiveness of that

representation, he preserved his pro se status—vitiating any opportunity to advance that

challenge. This “heads I win, tails you lose” approach is both internally inconsistent and

inequitable.

       Silverman’s brief undisputedly deviated from the wishes that Williams expressed,

was unapproved by Williams, was submitted with an “s/” signature on Williams’ behalf

that Williams did not authorize,4 and, in its omissions, effectively waived numerous issues

that Williams wished to litigate. In short, despite the fact that Williams never expressly

signaled his intent to relinquish his pro se status, at some point he lost access to every

privilege that defines self-representation—as well, it seems, as the right associated with

full representation by counsel that meets a constitutional minimum standard of

effectiveness, because, despite Silverman’s overweening actions, his engagement

retained its “stand-by” status.

       Nonetheless, Williams twice presented this issue to this Court during his direct

appeal, and twice this Court denied relief.5 In denying him the defining prerogative of pro


3      Only appellate counsel of record may omit issues that the client seeks to pursue.
See generally Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa. 2011) (“It is well settled
that appellate counsel is entitled, as a matter of strategy, to forego even meritorious
issues in favor of issues he believes pose a greater likelihood of success.”).
4     This circumstance suggests that counsel believed he continued to act in a stand-
by capacity. Williams’ signature would not otherwise be necessary.
5       This Court’s denial of Williams’ pro se prayers for relief by order is at odds with the
Ellis procedure as reaffirmed in Jette, see supra n.2, pursuant to which one would expect
the Court to forward the motions to Silverman without docketing or deciding them. The



                              [J-30-2018] [MO: Mundy, J.] - 4
se status to direct the presentation of his own defense, our orders necessarily accepted

the brief that Silverman submitted on Williams’ behalf, which reflected tactical decisions

to omit issues that Williams sought to present.           Only counsel serving in a fully

representative capacity has the privilege to make those sorts of decisions on a client’s

behalf. Thus, our tacit approval of that circumstance necessarily presumed Williams’

acquiescence to Silverman’s full representation.

       Because the stand-by counsel usurpation issue is subject to the previous litigation

bar, Williams may obtain collateral relief only by establishing Silverman’s ineffective

representation as direct appellate counsel.       In order to establish ineffectiveness, a

petitioner must plead and prove, by a preponderance of the evidence, that “(1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or

her action or inaction; and (3) the petitioner suffered prejudice because of counsel’s

ineffectiveness.”   Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).                   A

petitioner’s failure to establish any one prong is fatal to his claim. Id. at 1128. Here, while

Williams states an ineffectiveness claim in the alternative, he does not base it upon

Silverman’s alleged imposition upon Williams’ pro se status or upon Silverman’s failure

to act to address Williams’ attempt to file a pro se brief by, for example, filing a

supplemental brief. With regard to the usurpation of his pro se status, Williams frames

his claim as sounding directly in the violation of his right to self-representation and as a

violation of due process, rather than doing so clearly, if in the alternative, as a claim

regarding Silverman’s performance as counsel of record. In any event, Williams does not


record is insufficient to tease out the reason for this incongruity. However, it remains the
case that, because Williams’ attempts to assert his pro se status before this Court were
denied and are now unreviewable, a) any such effort in the instant collateral context is
not cognizable under the PCRA because it has been previously litigated, and b) that
finality must be read as embodying the premise that Silverman was identified by this Court
as counsel of record for purposes of Williams’ direct appeal.


                              [J-30-2018] [MO: Mundy, J.] - 5
even plead, let alone prove, any element of the ineffective assistance of counsel standard

on any theory. Thus, any such intended claim does not merit further consideration.

       In my view, once invoked, the right to represent oneself is too important to be

denied by implication. See Faretta v. California, 422 U.S. 806, 819 (1975) (“The Sixth

Amendment does not provide merely that a defense shall be made for the accused; it

grants to the accused personally the right to make his defense.”). That is why, while it

acknowledged that a defendant “may allocate to the counsel the power to make binding

decisions of trial strategy,” the Faretta Court held that the allocation of such power “can

only be justified . . . by the defendant’s consent, at the outset, to accept counsel as his

representative.” Id. at 820-21.6 Nothing in Faretta supports the proposition that a pro se

litigant can so thoroughly acquiesce to counsel’s “assistance” as to lose control of his

defense while nominally retaining pro se status, subordinating his will to “stand-by”

counsel’s fiat, while simultaneously sacrificing his time-honored right to constitutionally

adequate representation.

       To be clear, I do not take for granted that this Court so concluded. Our orders

were silent as to the Court’s rationale for denying Williams’ 2003 and 2005 motions, and

it would be imprudent to speculate now as to the Court’s reasoning then. I wish only to

suggest that, when a court observes behavior consistent with both a stand-by and a fully

representative relationship, it should take steps to ensure that the full nature of the

attorney-defendant relationship is mutually understood, as it must when determining


6       Notably, in its most recent term, the High Court, relying in part on Faretta, held that
a defendant does not surrender all control to trial counsel. Thus, in that case, the Court
held that a capital defendant had the right to direct counsel not to admit the defendant’s
guilt during the penalty phase of his trial, despite counsel’s reasonable belief that
admitting guilt was the most effective tactic to save the defendant from being sentenced
to death. The Court further held that trial counsel’s refusal to adhere to the defendant’s
direction in this regard constituted structural error necessitating a new trial. See McCoy
v. Louisiana, ___ U.S. ___, 138 S.Ct. 1500 (U.S. 2018).


                              [J-30-2018] [MO: Mundy, J.] - 6
whether a defendant’s stated desire to represent himself is knowing, voluntary, and

intelligent.   See Pa.R.Crim.P. 121 (describing the on-the-record colloquy required to

establish these elements). Here, some measure of confusion may have prevailed during

direct appeal. Nonetheless, the time to resolve any such confusion has passed. Because

the core question pertaining to Williams’ consent to Silverman’s representation has

previously been litigated, it is not cognizable under the PCRA. No further discussion of

the underlying merits is necessary or prudent.

       Justice Todd joins this concurring opinion.




                             [J-30-2018] [MO: Mundy, J.] - 7
