J-S55032-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                       Appellee             :
                                            :
                     v.                     :
                                            :
GREGORY BERNARD JACKSON,                    :
                                            :
                          Appellant         :     No. 465 WDA 2015


           Appeal from the Judgment of Sentence Entered May 6, 2014,
               in the Court of Common Pleas of Allegheny County,
              Criminal Division at No(s): CP-02-CR-0011721-2012

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED SEPTEMBER 28, 2015

         Gregory Bernard Jackson (Appellant) appeals from the judgment of

sentence entered following his convictions for intimidation of a witness and

harassment.        After careful review, we conclude that the record does not

show that the trial court conducted a meaningful waiver-of-counsel colloquy;

thus, we vacate Appellant’s judgment of sentence and remand for a new

trial.

         The trial court summarized the relevant procedural history of this case

as follows.

         On February 6, 2014, [Appellant] was found guilty of one count
         of intimidation of a witness and one count of harassment and not
         guilty of one count of stalking, following a jury trial. In this jury
         trial [Appellant] represented himself although he had standby
         counsel to assist him…. On May 6, 2014, [Appellant] was
         sentenced to a period of incarceration of not less than two nor
         more than four years to be followed by a period of probation of


* Retired Senior Judge assigned to the Superior Court.
J-S55032-15


      three years with a concurrent one year period of probation and
      was required to undergo random drug screening and also to
      have a mental health evaluation. [Appellant] filed timely post-
      sentence motions[;] however, the hearing was delayed on these
      motions since [Appellant] was sent to Torrance Hospital for the
      purpose of determining his competency to be sentenced. On
      March 18, 2015, a hearing was held on his post-sentence
      motions, which motions were denied. [Appellant] filed a timely
      appeal from the imposition of sentence upon him and was
      directed to file a concise statement of matters complained of on
      appeal. In that concise statement [Appellant] maintains that
      there was an insufficient colloquy with respect to the decision to
      allow him to represent himself. [Appellant] also maintains that
      [the trial court] abused its discretion in denying him the right to
      proceed without counsel to argue his post-sentence motions.

Trial Court Opinion, 6/11/2015, at 1-2.

      On appeal to this Court, Appellant raises the same issues he presented

in the court below: (1) whether he “is entitled to a new trial where the

record does not reveal that a proper/adequate colloquy was conducted

regarding   [Appellant’s]   exercise   of    his   right   to   represent   himself,

notwithstanding the appointment of standby counsel?”, and (2) “Whether

the Court of Common Pleas erred and/or abused its discretion in denying

[his] post-sentence motion to represent himself and proceed without

counsel?” Appellant’s Brief at 4.

      We address Appellant’s first claim mindful of the following.

      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. Alternatively, a criminal defendant has a well-
      settled constitutional right to dispense with counsel and to
      defend himself before the court. Deprivation of these rights can
      never be harmless.



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J-S55032-15


      Our Supreme Court mandates a probing colloquy to determine
      whether the defendant’s waiver is knowing, voluntary and
      intelligent. The court must also inquire whether:

            (1) the defendant understands that he has the right
            to be represented by counsel, and the right to have
            free counsel if he is indigent; (2) the defendant
            understands the nature of the charges against him
            and the elements of each of those charges; (3) the
            defendant is aware of the permissible range of
            sentences and/or fines for the offenses charged; (4)
            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 these rules; (5) defendant understands that
            there are possible defenses to these charges which
            counsel might be aware of, and if these defenses are
            not raised at trial, they may be lost permanently;
            and (6) 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, the
            objection to these errors may be lost permanently.

      In addition, it is incumbent on the court to fully advise the
      accused [of the nature and elements of the crime] before
      accepting waiver of counsel.

Commonwealth v. Clyburn, 42 A.3d 296, 298-300 (Pa. Super. 2012)

(citations and quotation marks omitted); see also Pa.R.Crim.P. 121

(addressing the right to waive counsel and the appropriate colloquy for a

criminal defendant who wishes to assert his or her right to self-

representation).

      Instantly, the trial court concedes, and the Commonwealth agrees,

that “[i]n reviewing the record in this case … the record does not establish a

sufficient colloquy with respect to the question of whether or not [Appellant]


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J-S55032-15


could     represent   himself.”   Trial    Court   Opinion,   6/11/2015,   at    3;

Commonwealth’s Brief at 6. The court notes that it was “cognizant” of the

Rule and “believes that it did follow the dictates” of the Rule, but “the record

for whatever reason does not contain that colloquy despite references in

various proceedings about the need for such colloquy.” Id. at 4. Our careful

review of the certified record leads to the same conclusion. Consequently,

we agree that the record does not show that Appellant was colloquied

properly pursuant to Rule 121, and thus that he never made a knowing,

intelligent, and voluntary waiver of counsel before trial. Accordingly, he is

entitled to a new trial. See Clyburn, 42 A.3d at 302. Therefore, we vacate

Appellant’s judgment of sentence and remand for a new trial.1

        Judgment of sentence vacated.           Case remanded for a new trial.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2015




1
    In light of our disposition, we need not address Appellant’s second issue.


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