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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KENNETH LEE BEAVER

                            Appellant                No. 1361 EDA 2015


                    Appeal from the PCRA Order April 2, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1302386-2006


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                FILED JUNE 16, 2016

        Kenneth Lee Beaver appeals the order entered April 2, 2015, in the

Philadelphia County Court of Common Pleas, dismissing his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. Beaver seeks relief from the judgment of sentence of a term of 59 to

119 months’ imprisonment imposed on October 25, 2007, after a jury found

him guilty of robbery and simple assault.1 On appeal, Beaver claims: (1)

the PCRA court erred in denying his petition without an evidentiary hearing;

and (2) the PCRA court erred by failing to find that trial counsel was

ineffective for failing to object to his waiver-of-counsel colloquy.   For the

reasons that follow, we affirm.
____________________________________________


1
    18 Pa.C.S. §§ 3701(a)(1)(iv) and 2701(a), respectively.
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       Beaver’s conviction arose out of robbery and assault on November 11,

2006, when Beaver hit the victim, Miguel Porfilio, on the head with a hard

object while demanding money.             The matter proceeded to a jury trial in

September of 2007. During jury selection, Beaver was unsatisfied with his

counsel’s strategy, and decided that he wanted to waive his constitutional

right to counsel and proceed pro se.             The trial court conducted an oral

colloquy in which it reviewed only five of the six elements listed in

Pennsylvania      Rule    of   Criminal    Procedure    121.      See    Pa.R.Crim.P.

121(A)(2)(a)-(f).2 At the conclusion of the colloquy, Beaver chose to waive

his right to counsel and the trial court permitted the waiver, but also

appointed standby counsel.

       On September 24, 2007, the jury convicted Beaver of robbery and

simple assault. On October 25, 2007, the trial court sentenced Beaver to a

term of 59 to 119 months on the robbery conviction.3

       On direct appeal, Beaver asserted his colloquy for waiver of counsel

was constitutionally inadequate.          On July 7, 2010, a panel of this Court

concluded that because the Commonwealth did not inform Beaver of the

elements     of   the    charges    against    him,   the   colloquy   was   deficient.
____________________________________________


2
   The court failed to identify the elements of the charges as required by
Pa.R.Crim.P. 121(A)(2)(b).
3
   Beaver had an extensive criminal history and, with respect to the incident
at issue, he robbed the victim only 36 days after being paroled from state
prison.



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Consequently, the panel vacated the judgment of sentence and remanded to

the trial court for a new trial. See Commonwealth v. Beaver, 6 A.3d 549

[3199 EDA 2007] (Pa. Super. 2010) (unpublished memorandum). However,

on May 3, 2011, the Pennsylvania Supreme Court vacated the panel’s order

and remanded to this panel with direction to address “the Commonwealth's

contention that [Beaver] was represented by counsel during the waiver-of-

counsel colloquy and, thus, did not sufficiently preserve by objection the

contention that the colloquy was constitutionally inadequate.”             See

Commonwealth v. Beaver, __ A.3d __, 2011 Pa. LEXIS 1056 [575 EAL

2010] (Pa. 2011) (per curiam).

       On remand, this Court affirmed the judgment of sentence, finding

Beaver had waived the issue regarding his colloquy.4     Commonwealth v.

Beaver, 32 A.3d 282 [3199 EDA 2007] (Pa. Super. 2011) (unpublished

memorandum).         On February 8, 2012, the Pennsylvania Supreme Court


____________________________________________


4
    Specifically, the panel determined:

       Beaver was represented by counsel at the start of trial and
       during the waiver colloquy. In addition, at the conclusion of the
       colloquy, neither Beaver nor his attorney objected, and his
       attorney stated that no additional questions or information was
       necessary. It was not until after this colloquy was completed and
       Beaver’s attorney was relegated to standby counsel that Beaver
       began to proceed pro se.

Beaver, 32 A.3d 282 [3199 EDA 2007] (Pa. Super. 2011) (unpublished
memorandum at 3).



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denied his petition for allowance of appeal.            See Commonwealth v.

Beaver, 37 A.3d 1193 (Pa. 2012).

       Subsequently, on February 21, 2012, Beaver filed a pro se PCRA

petition.    Counsel was appointed and, on November 3, 2013, filed an

amended PCRA petition, claiming that trial counsel was ineffective for failing

to object to Beaver’s waiver-of-counsel colloquy. The Commonwealth filed a

motion to dismiss on January 7, 2015. After reviewing the matter, the PCRA

court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition

without first conducting an evidentiary hearing on February 27, 2015.

Beaver did not file a response.           Thereafter, on April 2, 2015, the court

entered an order, dismissing Beaver’s PCRA petition.5 This appeal followed.6

       Based on the nature of Beaver’s claims, we will address them

together. First, Beaver claims the PCRA court erred in denying his petition

without holding an evidentiary hearing on the issues raised in his amended

PCRA petition. Beaver’s Brief at 15-16. Second, he argues the PCRA court

erred by failing to find that trial counsel was ineffective for failing to object

to his deficient waiver-of-counsel colloquy. Id. at 16. As noted above, the
____________________________________________


5
    We note the Rule 907 notice and the April 2, 2015, order were not
included in the certified record. Nevertheless, they were included on the
docket and neither party complains the court did not enter these documents.
6
    On May 6, 2015, the PCRA court ordered Beaver to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Beaver filed a concise statement on May 26, 2015. The court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on June 11, 2015.



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trial court failed to identify the elements of the charges as required by Rule

121(A)(2)(b).       Beaver complains that with respect to counsel’s omission,

counsel failed “to ensure [Beaver’s] waiver was voluntary, knowing and

intelligent.”     Id.   Moreover, with respect to the ineffectiveness test, he

states: (1) his claim has arguable merit because this Court’s July 7, 2010,

decision found that the colloquy was inadequate;7 (2) there was no

reasonable basis “not to correct the colloquy;”8 and (3) he suffered prejudice

as a result because “[h]ad [Beaver] been given a correct colloquy, he likely

would have proceeded with counsel.”9

          Our standard and scope of review for the denial of a PCRA petition is

well-settled:

          Our standard of review of the denial of a PCRA petition is limited
          to examining whether the evidence of record supports the
          court’s determination and whether its decision is free of legal
          error. Commonwealth v. Conway, 14 A.3d 101 (Pa. Super.
          2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This
          Court grants great deference to the findings of the PCRA court if
          the record contains any support for those findings.
          Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007),
          appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). “[A] petitioner
          is not entitled to a PCRA hearing as a matter of right; the PCRA
          court can decline to hold a hearing if there is no genuine issue
          concerning any material fact and the petitioner is not entitled to
          post-conviction collateral relief, and no purpose would be served
          by any further proceedings.” Commonwealth v. Taylor, 933
____________________________________________


7
    Id. at 19.
8
    Id. at 20.
9
    Id.



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      A.2d 1035, 1040 (Pa. Super. 2007), appeal denied, 597 Pa. 715,
      951 A.2d 1163 (2008); Pa.R.Crim.P. 907(1). “A reviewing court
      on appeal must examine each of the issues raised in the PCRA
      petition in light of the record in order to determine whether the
      PCRA court erred in concluding that there were no genuine
      issues of material fact and in denying relief without an
      evidentiary hearing.” Commonwealth v. Derrickson, 923 A.2d
      466, 468 (Pa. Super. 2007), appeal denied, 594 Pa. 685, 934
      A.2d 72 (2007).

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015), appeal

denied, __ A.3d __ [547 EAL 2015] (Pa. Apr. 12, 2016).

      Further, considering just the specific claim appellant has raised
      in this appeal, a PCRA petitioner will be granted relief only when
      he proves, by a preponderance of the evidence, that his
      conviction or sentence resulted from the “[i]neffective 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.” 42
      Pa.C.S.A. § 9543(a)(2)(ii). As our supreme court has stated:

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA
         petitioner pleads and proves all of the following: (1) the
         underlying legal claim is of arguable merit; (2) counsel’s
         action or inaction lacked any objectively reasonable basis
         designed to effectuate his client’s interest; and (3)
         prejudice, to the effect that there was a reasonable
         probability of a different outcome if not for counsel’s
         error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (case

citations omitted).

      Lastly, we are also guided by the following:


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     A criminal defendant has a constitutional right, necessarily
     implied under the Sixth Amendment of the U.S. Constitution, to
     self-representation at trial. Faretta v. California, 422 U.S.
     806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). However, before
     a defendant will be permitted to proceed pro se, he or she must
     knowingly, voluntarily, and intelligently waive the right to
     counsel. Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d
     645, 655 (Pa. 2008). To ensure that a waiver is knowing,
     voluntary, and intelligent, the trial court must conduct a “probing
     colloquy,” which is a searching and formal inquiry as to whether
     the defendant is aware both of the right to counsel and of the
     significance and consequences of waiving that right.
     Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1335-
     36 (Pa. 1995). More specifically, the court must determine the
     following:

        (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.




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     Pa.R.Crim.P. 121(A)(2); Blakeney, supra at 655; Starr, supra
     at 1335.
     Although our rules set forth specific requirements for a waiver
     colloquy, we have been careful to distinguish between a colloquy
     and the right that it was designed to protect, as follows:

          A waiver colloquy is a procedural device; it is not a
          constitutional end or a constitutional “right.” ... . [A]n on-
          the-record colloquy is a useful procedural tool whenever
          the waiver of any significant right is at issue, constitutional
          or otherwise, e.g., waiver of a trial, waiver of the right to
          counsel, waiver of the right to call witnesses, waiver of the
          right to cross-examine witnesses, waiver of rules-based
          speedy trial time limits, etc. But the colloquy does not
          share the same status as the right itself.

     Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 697
     (Pa. 2008) (applying the above principle in the context of waiver
     of the right to a jury trial).

     As Mallory made explicitly clear, when a petitioner claims
     ineffective assistance of counsel based on a failure to object to
     an allegedly defective waiver colloquy, the claim must be
     analyzed like any other ineffectiveness claim. Id. at 698. The
     petitioner cannot prevail merely by establishing that the waiver
     colloquy was indeed defective in some way.           Rather, the
     petitioner must prove that, because of counsel’s ineffectiveness,
     he waived the constitutional right at issue unknowingly or
     involuntarily, and that he was prejudiced.         To establish
     prejudice, the petitioner must demonstrate a reasonable
     probability that but for counsel’s ineffectiveness, he
     would not have waived the right at issue. Id. at 698-704.
     In considering such a claim of ineffectiveness, the court
     considers the totality of the circumstances and the entire record,
     not just the colloquy itself. Id. at 698, 704.

Commonwealth v. Spotz, 18 A.3d 244, 263-264 (Pa. 2011) (emphasis

added).

     Turning to the present matter, other than a bald assertion, Beaver has

not met his burden or demonstrated that he would not have waived his right


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to counsel had the trial court conducted a sufficient colloquy.    Indeed, he

provides no explanation as to why being informed of the elements of the

offenses would have affected his decision to waive counsel.

      The record shows that the trial court conducted a colloquy after Beaver

indicated he wanted to represent himself at trial, including at jury selection.

See N.T., 9/20/2008, at 21. Beaver acknowledged his right to be

represented by counsel and to have free counsel appointed for him. Id. at

24-25. Beaver stated he was not under the influence of alcohol, prescription

medication, or mental disorders that would affect his decision. Id. at 28-29.

He indicated he was aware of the two charges he faced and the grading of

those offenses. Id. at 26. Beaver acknowledged he would be bound by all

the normal rules of procedure and evidence. Id. at 27. The court informed

Beaver that there were certain dangers to proceeding pro se, dangers which

he may not be familiar with but that counsel would be. Id. at 27. Beaver

also understood that there were certain rights and defenses that would be

permanently lost if not raised properly. Id. at 27-28. After the questioning,

the trial court determined Beaver knowingly, voluntarily, and intelligently

waived his right to counsel. Id. at 29-31. In addition, the court appointed

Vincent Corrigan, Esquire, who had been serving as trial counsel to serve in

the role of stand-by counsel. Id. at 29-30. Beaver indicated he understood

the role of standby-counsel. Id. at 31.




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       Furthermore, as the Commonwealth mentions,10 in Beaver’s opening

statement to the jury, he told the fact-finders why he was representing

himself:

       Why pro se?

       Why do I represent myself?

       I am self representing pro se not to make a political statement,
       but because I don’t and can’t trust the legal profession
       based on the failure to disclose.

       The existing a secret law between the federal Unites States
       defined at 28 US 30215, a federal cooperation in the compact,
       the general factors states that the people and our free and
       habitus of the several states as title 50 USC a trading with the
       enemy act, war power act, modifying 5B of said act signed March
       4th and March 6th of 1933 by Franklin D. Roosevelt and
       contendere yearly by President to date the suit to title three
       code of federal regulations January 1, 1997.

       We have lawyers in the White House, congress in our judiciary.
       The court is run by lawyers and they are all legislative. The
       president legislates with executive quarters and presidential
       decisions directly the legislature legislates anything they want
       and conflict with Article 1 section 8 of our Constitution the judge
       has made knew laws by making words meaning whatever they
       want is called judicial construction our Constitution and the
       rights guaranteed by you.

N.T., 9/21/2007, at 21 (emphasis added) (grammatical errors in original).

       Additionally, Beaver was previously convicted of both robbery and

simple assault, and was imputably aware of the elements of those offenses.

See N.T., 10/25/2007, at 14-15. Therefore, we find any allegation that he

____________________________________________


10
     See Commonwealth’s Brief at 10-11.



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would not have waived his right to counsel if the court had properly informed

him during the colloquy as to the elements of the crimes charged is

improbable.11

       Lastly, as the PCRA court pointed out:

       [Beaver]’s numerous pro se filings between 2007 and 2014,
       demonstrate that he prefers acting as his own attorney and
       questions the competency of counsel to represent him. For
       example, during his self-representation in letters and filings, he
       often quotes legalese and cites case law, which he apparently
       believes counsel would have failed to present to the court for
       him. This is evidence that [Beaver] simply believed he could
       handle his case better than a seasoned court-appointed
       attorney.

PCRA Court Opinion, 6/11/2015, at 6-7 (footnoted omitted).

       Based on the totality of the circumstances, we conclude Beaver has

not demonstrated that “there [was] a reasonable probability that but for

counsel’s ineffectiveness, he would not have waived the right at issue.”

Spotz, 18 A.3d at 263-264. As such, Beaver has not established prejudice,

the third prong of the ineffectiveness test, and his ineffective assistance of

counsel argument fails. Franklin, 990 A.2d at 797. Moreover, we find the

PCRA court did not err in declining to hold a hearing because there was no

genuine issue concerning any material fact.        Smith, 121 A.3d at 1052.



____________________________________________


11
    See also Commonwealth’s Brief at 11 (noting Beaver had been tried,
convicted, and sentenced in three prior criminal actions involving the same
crimes he faced in the present matter).



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Accordingly, the PCRA court did not err in denying Beaver’s petition and no

relief is warranted.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




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