J-S46040-18

                                  2019 PA Super 209

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHANE EDWARD MURPHY, JR.,                  :
                                               :
                       Appellant.              :   No. 302 EDA 2018


          Appeal from the Judgment of Sentence, December 18, 2017,
                in the Court of Common Pleas of Bucks County,
             Criminal Division at No(s): CP-09-CR-0002333-2017.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

OPINION BY KUNSELMAN, J.:                                 FILED JULY 08, 2019

        Shane Edward Murphy appeals from his judgment of sentence entered

after a judge determined he violated the terms of his probation. After review,

we vacate his judgment of sentence and the finding of a violation and remand

for a new probation violation hearing.

        In July 2017, Murphy pleaded guilty to pulling a false fire alarm in an

apartment building.1 After accepting a plea deal between the Commonwealth

and Murphy, the trial judge, using a form order, imposed a sentence of 18

months of county probation.          See Trial Court Order, 7/12/17.   The judge

completed the rest of the relevant portions of the form order as follows:

           X Other: Probation may term[inate] after completion of 12
           months with no violations if approved by adult probation –
           this case to stay with Judge Gibbons only.


____________________________________________


1   18 Pa.C.S.A. § 4905(a).
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         SPECIAL CONDITIONS:

          X Costs within ______ . . .

          X Anger Management Program: Screen for / Ordered . . .

          X No Contact with Victim: Colonial Point Apts. Complex . . .

         X Drug & Alcohol/Mental Health Evaluation within ____ days
         and abide by recommendations . . . .

Id. (italics indicates handwritten portion of order). Notably, the order failed

to specify when Murphy had to commence or complete the special conditions

of the anger management classes or the drug and alcohol/mental health

evaluations.

       Five months later, the Commonwealth summoned Murphy before the

trial judge for failing to comply with those special conditions.

       Probation Officer Natalia Mozyrsky, addressed the trial judge on behalf

of the Commonwealth.      See N.T., 12/18/17, at 2-3.      According to Officer

Mozyrsky, Murphy “stated unequivocally that he will not put out a dime of his

own money to pay for any condition that the court had ordered and will not

complete a drug and alcohol or mental health assessment, nor pay for anger

management classes other than the class he found on the Internet.” Id. at

3-4.

       The trial judge was familiar with Murphy, because she had sentenced

him following his negotiated guilty plea to the false-alarm charge in July 2017.

In fact, when she originally sentenced him on that charge, she included a

condition at his guilty plea hearing that, “If [Murphy] violates this probation,

he be brought back in front of me and that I will determine what the

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appropriate sanction will be.”    N.T., 7/12/17, at 19-20.     At the revocation

hearing, the trial judge allowed Murphy to testify about his inability to pay.

N.T., 12.18/17, at 6-10.    Essentially, Murphy asserted that he did not refuse

to pay for any treatment, but rather, simply did not have the present financial

ability to do so.

      After hearing the conflicting testimony, the trial judge accepted the

probation officer’s recommendation and sentenced Murphy to imprisonment

of 1 to 365 days in the county jail, “with presumptive parole after completion

of drug and alcohol and mental health assessments while at the Bucks County

Correctional Facility.” Trial Court Opinion at 2.

      This timely appeal followed. Both Murphy and the trial judge complied

with Pennsylvania Rule of Appellate Procedure 1925.

      Murphy raises two issues on appeal:

         A.     Did the Commonwealth fail to prove a violation by a
                preponderance of the evidence, where [Murphy]
                contested the alleged violation, the terms of his initial
                sentence, and he lacked the ability to financially?

         B.     Was [Murphy] denied his enhanced state and federal
                due process rights when an uncounseled, probation
                violation hearing was allowed to proceed without
                advanced notice of the allegations, the opportunity to
                obtain counsel, the ability to prepare a defense, and
                the ability to ensure that evidentiary and probationary
                rules of procedure were followed?

Murphy’s Brief at 4.

      Before addressing the merit of the above claims, we must first

determine whether Murphy waived his right to counsel. We reject the trial


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judge’s conclusion that Murphy waived this issue. See Trial Court Opinion,

4/11/18, at 4. As this Court has recently reiterated:

               “Where the parties fail to preserve an issue for appeal,
        the Superior Court may not address that issue sua sponte.”
        Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 891
        (2010) (quoting Steiner v. Markel, 600 Pa. 515, 968 A.2d
        1253, 1257 (2009)). However, this Court has subsequently
        held that “where an indigent, first-time PCRA petitioner was
        denied his right to counsel-or failed to properly waive that
        right-this Court is required to raise this error sua sponte and
        remand for the PCRA court to correct that mistake.”
        Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa.
        Super. 2011) (emphasis added). Further, “as a general
        rule, failure to raise an issue in a criminal proceeding does
        not constitute a waiver where the defendant is not
        represented by counsel in the proceeding. This rule does
        not apply where the defendant knowingly and intelligently
        waived representation by counsel.” Commonwealth v.
        Monica, 528 Pa. 266, 597 A.2d 600, 603 (1991) (citation
        omitted).

               It is the responsibility of the trial court to ensure that
        a colloquy is performed if the defendant has invoked his
        right to self-representation.        See Commonwealth v.
        Davido, 582 Pa. 52, 868 A.2d 431, 437-38 (2005). “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. Deprivation of these rights can
        never be harmless.” Commonwealth v. Payson, 723 A.2d
        695, 700 (Pa. Super. 1999) (citations omitted). “Courts
        indulge every reasonable presumption against waiver of
        fundamental constitutional rights and that we do not
        presume acquiescence in the loss of fundamental rights. A
        waiver is ordinarily an intentional relinquishment or
        abandonment of a known right or privilege.” Johnson v.
        Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461
        (1938) (footnotes and citations omitted).




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Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa. Super. 2017)

(emphasis added).2

       The determination of whether a valid waiver of counsel occurred in any

particular case implicates the requirements of Pennsylvania Rule of Criminal

Procedure 121:

                “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.”
          Commonwealth v. Houtz, 856 A.2d 119, 123 (Pa. Super.
          2004) (citation omitted). Failing to conduct an on the record
          colloquy pursuant to Rule 121(c) before allowing a
          defendant to proceed pro se constitutes reversible error.
          Id. at 124 (citing Payson, 723 A.2d at 701). “Once federal
          constitutional rights are involved, and once it is clear . . . a
          particular defendant did not exercise those rights, our
          inquiry must be whether there was a valid waiver of those
          constitutional rights.” Commonwealth v. Norman, 447
          Pa. 217, 285 A.2d 523, 525-26 (1971). Furthermore,
          waiver cannot be presumed in a silent record. Id. at 526.

                 The inherent importance of the right to counsel
          justifies its overwhelming protection and the rigorous
          requirements necessary to find waiver.

Johnson, 158 A.3d at 121-122 (emphasis added).3                 Given the above

precedent, “it is apparent that this Court has a duty to review” whether
____________________________________________


2For these same reasons, we also reject the trial judge's waiver finding based
upon the lack of specificity in his Rule 1925(b) statement. See Trial Court
Opinion, 4/11/18, at 4.

3 We acknowledge that the Commonwealth Court has held “there is no
absolute right under either the Sixth Amendment or the Fourteenth
Amendment to be afforded counsel at a parole or probation revocation
hearing,” and that the court is not required to conduct an extensive on-the-



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Murphy “properly waived his right to counsel” prior to the presentation of

evidence against him at the violation of probation hearing. Johnson, 158

A.3d at 122.

       Here, at the beginning of the violation of probation hearing, the following

exchange occurred regarding Murphy's appearance without counsel:

          ASSISTANT DISTRICT ATTORNEY:           Commonwealth
              versus Shane Murphy[, who] is present without
              counsel today. He is not in agreement with the
              recommendation from Adult Probation and Parole.

          THE COURT: Mr. Murphy, you understand you have a right
               to have an attorney with you at these proceedings?

          MURPHY:           Yes, Your Honor.

          THE COURT: And you did not retain counsel or apply for
               the Public Defender's Office?

          MURPHY:           Yes.

          THE COURT: Were you present when everyone else was
               sworn?

          MURPHY:           No, Your Honor.

          THE COURT: All right. Can we have him sworn, please?




____________________________________________


record colloquy under Rule 121 to ensure that a defendant made a valid waiver
of counsel. See Jester v. Pennsylvania Bd. of Probation and Parole, 595
A.2d 748, 751 (Pa. Cmwlth. 1991) (citing Gagnon v. Scarpelli, 411 U.S. 778
(1973)). Commonwealth Court decisions are not binding on this Court but
may be considered as persuasive authority. Commonwealth v. Heredia, 97
A.3d 392, 395 n.4 (Pa. Super. 2014). We do not adopt this statement of the
law in this instance. See Pa.R.Crim.P. 708(B)(1) (providing the trial court will
not revoke a probationary sentence unless a violation is found following a
hearing “at which the defendant is present and represented by counsel”).

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J-S46040-18



N.T., 12/18/17, at 2. The court staff then swore in Murphy, and the violation

hearing proceeded, resulting in the finding of a probation violation and the

imposition of the aforementioned sentence.

       The above exchange between the trial court and Murphy was insufficient

to constitute an adequate waiver of counsel. Stated differently, the on-the-

record discussion on Murphy’s right to counsel was truncated and fell well

short of a colloquy memorializing a knowing and voluntarily waiver of counsel

pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) and

Pa.R.Crim.P. 121. See, e.g., Commonwealth v. Robinson, 970 A.2d 455,

460 (Pa. Super. 2009) (en banc) (explaining, “[r]egardless of how ambiguous

a defendant's expression may be, without [Pa.R.Crim.P 121] colloquy the

court cannot ascertain that the defendant fully understands the ramifications

of a decision to proceed pro se and the pitfalls associated with the lack of legal

training”).4

       Accordingly, we vacate both the order revoking Murphy’s probation and

the resulting judgment of sentence, and remand for additional proceedings.

As an initial matter, the court shall appoint counsel for Murphy, if he is

indigent, or conduct a Grazier hearing to ensure a valid waiver of the right to




____________________________________________


4 Murphy’s violation of probation hearing was one of several heard during the
same proceeding. We again caution trial judges that “en masse” dispositions
still require the protections of defendants’ due process rights, including the
right to counsel. See generally, Commonwealth v. Mauk, 185 A.3d 406
(Pa. Super. 2018).

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counsel. The court may then proceed with a new Gagnon-I or Gagnon-II,

probation-revocation hearing.

     Judgment of sentence vacated. Case remanded with instructions.

     Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/19




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