J-S25039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES WAYNE POU

                            Appellant                 No. 1515 WDA 2015


               Appeal from the PCRA Order September 17, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002742-2013


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED APRIL 12, 2016

        Charles Wayne Pou (“Appellant”) appeals pro se from the order

entered in the Erie County Court of Common Pleas, which dismissed his

petition filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1

For the reasons that follow, we vacate the order denying Appellant’s PCRA

petition and remand to the PCRA court for an evidentiary hearing.

        The relevant facts and procedural history of this appeal are as follows.

On July 25, 2013, Appellant was arrested and charged with 18 offenses

related to his involvement in an armed robbery of a home on July 3, 2013.

He and two other males allegedly pointed a gun at a one-year-old child while

they robbed the family’s home in their presence.

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
J-S25039-16



      On October 8, 2013, Appellant’s court appointed counsel, Keith H.

Clelland, Esq., filed a motion to withdraw representation.             The motion

alleged that he and Appellant engaged in an argument at a preliminary

hearing conducted on September 4, 2013.              The motion alleged Appellant

insisted Attorney Clelland call co-defendant Robert Turner to testify, but

Attorney Clelland told Appellant he could not call Turner to testify. Appellant

then filed several pro se motions asserting his counsel’s ineffectiveness. On

October 17, 2013, the court denied Attorney Clelland’s motion to withdraw.

      On October 26, 2013, the court conducted an omnibus pretrial motion

hearing   at   which    Attorney    Clelland    again    requested    to   withdraw

representation, and Appellant expressed his dissatisfaction with counsel and

his belief that there was a conflict between them. The court again denied

the motion to withdraw.

      On January 8, 2014, Appellant filed a pro se request for new counsel,

and several other pro se motions, all of which the clerk of courts forwarded

to Attorney Clelland.     Appellant filed a complaint against Attorney Clelland

with disciplinary counsel.    On January 29, 2014, Appellant wrote a letter

indicating he would like to represent himself.

      On February 11, 2014, the first day of his jury trial, Appellant again

expressed his desire to represent himself.       The trial court then conducted

the following colloquy:

          THE COURT:         Do    you   wish   to    represent   yourself,
          [Appellant]?


                                         -2-
J-S25039-16


       [APPELLANT]: Yes, I do, Your Honor.

       THE COURT: You have a right to do so.

       [APPELLANT]: Yes, yes, yes, I do.

       THE COURT: All right. Do you want to go over the waiver
       with him?

       [PROSECUTOR]: … I’m with the District Attorney’s office
       and I am the prosecuting attorney of your case. What you
       have before you is a right to counsel waiver. I’ve filled out
       you name and docket number. I’ve signed and dated this
       form. I’m going to read these questions. Please answer
       yes or no loud enough so our court reporter can hear you
       and I’ll mark down your answers. Do you understand
       that?

       [APPELLANT]: I see it.

       [PROSECUTOR]:      Okay, I mean, you understand what I
       just told you?

       [APPELLANT]: Yeah, I understand what you just said.

       [PROSECUTOR]: Okay. Question number one states, do
       you understand you have the right to be represented by an
       attorney and a right to a free attorney if you can’t afford
       one and you also meet the eligibility requirements of the
       Erie County Public Defender’s office?

       [APPELLANT]: Yeah, I understand that.

       [PROSECUTOR]: Okay, I’m going to mark yes. Do you
       know the nature and the elements of the charges against
       you?

       [APPELLANT]: I’ve read them.

       [PROSECUTOR]: Okay. Would you – yes or no?

       [APPELLANT]: Yes.




                                   -3-
J-S25039-16


       [PROSECUTOR]: Do you know the nature – I’m going to
       mark down yes. Are you aware of the possible range of
       sentences, including fines and the maximum possible
       penalty that can be imposed if you’re found guilty or plead
       guilty?

       [APPELLANT]: Yes.

       [PROSECUTOR]: Okay. I’m going to mark down your
       answer, yes. Do you understand that if you represent
       yourself you will still be required to follow all the rules of
       criminal procedure as well as the rules of evidence?

       [APPELLANT]: Yes.

       [PROSECUTOR]: Do you understand that an attorney will
       be more familiar with these rules than you?

       [APPELLANT]: I don’t – no, I don’t understand that… I
       don’t understand how if an attorney is more familiar with it
       than why am I in this courtroom right here right now?

       THE COURT: Because you’re charged with crimes.

       [APPELLANT]: Well, I should have – at the preliminary
       hearing it should have never happened. It should have
       been thrown out at the preliminary.

       THE COURT: Well, that’s your opinion. But we’re past
       that stage and now is your trial and if it should be thrown
       out or you should be found not guilty, we have twelve
       jurors who can decide that.

       [APPELLANT]: Okay. Well, I’ll say yes.

       [PROSECUTOR]: I’m going to mark your answer yes to
       question five.

       [APPELLANT]: All right.

       [PROSECUTOR]:     Okay.   Question six states, do you
       understand that there may be defenses to these charges
       which counsel would be aware of?


                                   -4-
J-S25039-16


       APPELLANT: yes.

       [PROSECUTOR]: Do you understand that if those defenses
       or other rights are not raised at the right time they may be
       permanently lost?

       [APPELLANT]: Yes.

       [PROSECUTOR]: Do you understand that if errors or rule
       violations occur and you don’t object to them at the right
       time, you will lose your right to object to those errors or
       rule violations permanently?

       [APPELLANT]: Okay, yes.

       [PROSECUTOR]: Are you voluntarily giving up your right to
       be represented by an attorney?

       [APPELLANT]: I would like standby counsel along with me.
       That’s what I want. I want standby counsel to advise me
       when I’m wrong and all of that. That’s what I would like
       also. Standby counsel, you know….

       [PROSECUTOR]: So question number nine, are you
       voluntarily giving up your right to be represented by an
       attorney?

       [APPELLANT]: Yes.

       [PROSECUTOR]: Question ten, which is the last question,
       have you been forced or pressured in any way or have
       promises been made to you that have influenced your
       decision to waive your right to be represented by an
       attorney?

       [APPELLANT]: Well, you know, just to make sure it’s on
       the record, the reason I want to represent myself and not
       go with an attorney – with this particular attorney, Mr.
       Celland (sic) is, you know, he hasn’t – he spoke to me one
       time and never even talk – spoke to me about a defense in
       my case, you know. He never even – he never done any
       of that, you know. He didn’t do what I asked him to do at
       the preliminary hearing which was, you know, ask for a


                                  -5-
J-S25039-16


        pre-trial, pre-hearing lineup. I was never identified by the
        victim. He came –

        THE COURT:      We’re not going to go into the primary
        hearing.

        [APPELLANT]: Oh, okay. Well, that’s the reason why I
        want to represent myself, because I believe in my heart
        that I could do a better job myself.

                                *    *     *

        [PROSECUTOR]: So the question is has anybody… forced
        you or pressured you in any way or have promises been
        made to influence your decision today?

        [APPELLANT]: No, no no, ain’t nobody –

        [PROSECUTOR]: Marking your answer as no. Are all of the
        answers that I’ve marked, one through ten, a correct
        reflection of your answers today?

        [APPELLANT]: Yes.

        [PROSECUTOR]: Okay. The last line states that I have
        read the above document in its entirely and you wish to
        give up your right to be represented by an attorney. If
        you agree with that statement, I’m going to have you sign
        on the line marked defendant.

N.T., 2/11/2014, at 14-21.

     Appellant then signed the written colloquy, which did not specify the

crimes with which Appellant was charged or the possible sentences for each

crime, and represented himself at trial.       The jury convicted Appellant of

robbery, criminal conspiracy, burglary, possessing instruments of crime,

theft by unlawful taking, receiving stolen property, recklessly endangering

another person, unlawful restraint/involuntary servitude, and terroristic


                                    -6-
J-S25039-16


threats with intent to terrorize another.2         On April 2, 2014, the court

sentenced Appellant to an aggregate term of thirty (30) to sixty (60) years’

incarceration.

       On April 28, 2015, this Court affirmed Appellant’s judgment of

sentence. Appellant did not file a petition for allowance of appeal with our

Supreme Court. On July 28, 2015, Appellant filed a pro se PCRA petition.

On August 3, 2015, the PCRA court appointed counsel, who filed a petition to

withdraw along with a no-merit letter pursuant to Turner3 and Finley4 on

August 14, 2015. On August 21, 2015, the PCRA court issued a notice

pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s PCRA

petition without a hearing.        On August 24, 2015, the PCRA court granted

counsel’s petition to withdraw.        On September 10, 2015, Appellant filed a

pro se objection to the PCRA court’s Pa.R.Crim.P. 907 notice. On September

17, 2015, after considering Appellant’s objection, the PCRA court dismissed

Appellant’s petition.

       On September 30, 2015, Appellant filed a pro se notice of appeal. The

PCRA court did not order, and Appellant did not file, a Pa.R.A.P. 1925(b)

____________________________________________


2
  18 Pa.C.S. §§ 3701(a)(1)(ii), 903(c), 3502(a)(1), 907(a), 3921(a),
3925(a), 2705, 2902(a)(2), and 2706(a)(1), respectively.
3
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
4
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).




                                           -7-
J-S25039-16


statement.    The PCRA court adopted its “Opinion and Notice of Intent to

Dismiss Without a Hearing,” filed September 17, 2015, as its Pa.R.A.P

1925(a) opinion.

      Appellant raises the following issue for our review:

          [WHETHER]    DIRECT     APPEAL   COUNSEL     WAS
          CONSTITUTIONALLY DEFICIENT FOR FAILING TO ARGUE
          ON APPEAL THAT THE TRIAL COURT ERRED IN ALLOWING
          APPELLANT TO WAIVE HIS CONSTITUTIONAL RIGHT TO
          COUNSEL WHERE THE COURT FAILED TO CONDUCT A
          FULL AND COMPLETE ORAL WAIVER OF COUNSEL
          COLLOQUY PRIOR TO GRANTING APPELLANT PERMISSION
          TO PROCEED PRO SE[?]

Appellant’s Brief at 3.

      Appellant’s claim that his direct appeal counsel was ineffective for

failing to argue on appeal that the trial court erred in allowing him to waive

his right to counsel without a full colloquy is cognizable under the PCRA, 42

Pa.C.S. § 9543(a)(2)(ii).

      Our standard of review regarding PCRA relief is well-settled.      “[W]e

examine whether the PCRA court’s determination is supported by the record

and free of legal error.”    Commonwealth v. Fears, 86 A.3d 795, 803

(Pa.2014) (internal quotation marks and citation omitted).      “The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.”   Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) (citation

omitted).    “It is well-settled that a PCRA court’s credibility determinations

are binding upon an appellate court so long as they are supported by the

                                      -8-
J-S25039-16


record.”    Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa.2013)

(citation omitted).      However, this Court reviews the PCRA court’s legal

conclusions de novo.          Commonwealth v. Rigg, 84 A.3d 1080, 1084

(Pa.Super.2014) (citation omitted).

       This Court follows the Pierce5 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

           When a petitioner alleges trial counsel’s ineffectiveness in
           a PCRA petition, he must prove by a preponderance of the
           evidence that his conviction or sentence resulted from
           ineffective   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. We have
           interpreted this provision in the PCRA to mean that the
           petitioner must show: (1) that his claim of counsel’s
           ineffectiveness has merit; (2) that counsel had no
           reasonable strategic basis for his action or inaction; and
           (3) that the error of counsel prejudiced the petitioner-i.e.,
           that there is a reasonable probability that, but for the error
           of counsel, the outcome of the proceeding would have
           been different. We presume that counsel is effective, and it
           is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).


____________________________________________


5
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



                                           -9-
J-S25039-16


        We must first determine whether Appellant’s claim of ineffective

assistance of counsel has merit. We observe:

          “Both the right to counsel and the right to self-
          representation are guaranteed by the Sixth Amendment to
          the United States Constitution and by Article I, Section
          Nine of the Pennsylvania Constitution.” Commonwealth
          v. Payson, 723 A.2d 695, 699-700 (Pa.Super.1999).
          “Deprivation of these rights can never be harmless.” Id.
          The constitutional right to counsel may be waived, but this
          waiver is valid only “if made with knowledge and
          intelligence.” Id. at 700 (citing Commonwealth v. Carey,
          340 A.2d 509 ([Pa.Super.]1975)).

          “In order to make a knowing and intelligent waiver, the
          individual must be aware of both the nature of the right
          and the risks and consequences of forfeiting it.” Payson,
          supra at 700 (citing Commonwealth v. Starr, 664 A.2d
          1326 ([Pa.]1995)).

Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa.Super.2004).

        Further,

             the presumption must always be against the waiver
             of a constitutional right. Nor can waiver be presumed
             where the record is silent. The record must show, or
             there must be an allegation and evidence which
             shows, that an accused was offered counsel but
             intelligently and understandingly rejected the offer.

Commonwealth v. Phillips, 93 A.3d 847, 852 (Pa.Super.2014).

        Pennsylvania Rule of Criminal Procedure 121 provides, in relevant

part:

          Rule 121. Waiver of Counsel

          (A) Generally.

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

                                    - 10 -
J-S25039-16



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

Pa. R. Crim. P. 121.

      A trial court must “fully advise the accused of the nature and elements

of the crime before accepting waiver of counsel.” Phillips, 93 A.3d at 853

(internal citations omitted; emphasis deleted). Additionally, the court should




                                    - 11 -
J-S25039-16


“inquire about the defendant’s age, educational background, and basic

comprehension skills.” Id.

      Here, the trial court conducted an oral colloquy in which Appellant

indicated that he knew the nature and the elements of the charges against

him, and that he was aware of the possible range of sentences and

maximum possible penalties against him. However, the trial court did not

advise Appellant of the specific statutory maximum sentences for his crimes

in the oral or written colloquy. Further, the court did not inquire about his

age, educational background or basic comprehension skills. Thus, the court

failed to meet the minimum requirements of Rule 121.

      We must now determine whether appellate counsel had a reasonable

basis for failing to raise this issue in a direct appeal, and whether this failure

prejudiced Appellant.

      When a claim has arguable merit, and there has been no evidentiary

hearing below to determine if there was a reasonable basis for counsel’s

actions,   then   this    Court   will    remand      for   an   evidentiary   hearing.

Commonwealth v. Shablin, 524 A.2d 511, 512 (Pa.Super.1987) (quoting

Commonwealth         v.   Spotts,        491   A.2d   132,   134    (Pa.Super.1985)).

However, if the “appellant was not prejudiced by the alleged error by

counsel, then an evidentiary hearing is unnecessary.” Commonwealth v.

Petras, 534 A.2d 483, 485 (Pa.Super.1987) (quoting Commonwealth v.

Clemmons, 479 A.2d 955, 957 (Pa.1984)).


                                          - 12 -
J-S25039-16


      Further,

         [w]here the record on appeal clearly shows that there
         could have been no reasonable basis for the damaging
         decision or omission by trial counsel, then of course the
         judgment must be vacated and appropriate relief, such as
         allowing the filing of post[-]trial motions or the ordering of
         a new trial, granted. Where, on the other hand, it is
         impossible to tell from the record whether or not the action
         of trial counsel could have had a rational basis, the
         appellate court will vacate the judgment, at least for the
         time being, and remand for an evidentiary hearing at
         which trial counsel may state his reasons for having
         chosen the course of action taken. Neither of these
         remedies, however, is appropriate if from the record it is
         apparent that the actions claimed to constitute
         ineffectiveness were in fact within the realm or trial tactics
         of strategy.

Commonwealth v. Egan, 484 A.2d 802, 805 (Pa.Super.1984) (internal

citations omitted; emphasis deleted).

      “[O]nly where record clearly establishes action or omission of…counsel

was without reasonable basis should PCRA court resolve reasonable basis

prong of ineffectiveness test without remand for evidentiary hearing

regarding… counsel’s strategy.” Commonwealth v. Williams, 899 A.2d

1060, 1065 (Pa.2006) (citing Commonwealth v. Williams, 732 A.2d 1167,

1189-90 (Pa.1999). Further, our Supreme Court “has expressed a distinct

preference for a hearing on counsel’s strategy before venturing to hold that

counsel lacked a reasonable basis for his or her action or inactions.”

Commonwealth v. Spotz, 84 A.3d 294, 303 (Pa.2014).

      Here, if direct appeal counsel had raised the issue of the trial court’s

error of failing to conduct a complete oral colloquy before allowing Appellant

                                     - 13 -
J-S25039-16


to represent himself, this Court would have vacated his judgment of

sentence and allowed him to proceed to a new trial with counsel or with a

proper colloquy. See Phillips, 93 A.3d at 855 (holding, on direct appeal,

“[i]n light of the…courts’ failure to meet the minimum requirements of Rule

121 and to question Appellant on the qualitative aspects of his waiver of

counsel at multiple critical stages of the proceedings, we are constrained to

vacate the judgment of sentence and remand for further proceedings.”)

      Without an evidentiary hearing, it is impossible to determine whether

appellate counsel had a reasonable basis for failing to raise an issue that

would have resulted in Appellant having a new trial with the assistance of

counsel.   Further, counsel’s failure to raise Appellant’s issue may have

prejudiced him by preventing him from having a new trial, with counsel,

which may have affected the outcome of his jury trial.           Thus, we are

constrained to vacate the PCRA order denying Appellant’s petition and

remand to the PCRA court for an evidentiary hearing to determine whether

appellate counsel had a reasonable basis for failing to raise Appellant’s claim

on direct appeal, and whether this failure prejudiced Appellant.

      Order vacated.   Case remanded for further proceedings. Jurisdiction

relinquished.

      Judge Mundy joins in the Memorandum

      President Judge Emeritus Ford Elliott notes her dissent.




                                    - 14 -
J-S25039-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




                          - 15 -
