J-A10035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

DASHAUN LAQUINN JAMISON

                            Appellant                     No. 1262 MDA 2013


            Appeal from the Judgment of Sentence March 25, 2013
           In the Court of Common Pleas of Northumberland County
             Criminal Division at No(s): CP-49-CR-00000068-2011


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED SEPTEMBER 15, 2015

        Appellant DaShaun Laquinn Jamison appeals from the judgment of

sentence entered in the Northumberland County Court of Common Pleas.

We find Appellant represented himself pro se at trial without waiving or

forfeiting his right to counsel.       We reverse the judgment of sentence and

remand for further proceedings.

        On November 29, 2010, a criminal complaint charged Appellant with

two     counts   of   aggravated     assault,   two   counts   of   criminal   attempt

(aggravated assault), and two counts of simple assault. 1             Police Criminal

Complaint at 2-3.        The complaint alleged that on November 18, 2010,

Appellant, a prisoner at the State Correctional Institution at Coal Township,
____________________________________________


1
    18 Pa.C.S. § 2702(a)(3), 901(a), and 2701(a)(1), respectively.
J-A10035-15



assaulted two correctional officers. Id. On January 4, 2011, public defender

James Rosini represented Appellant at a preliminary hearing. On March 31,

2011, Mr. Rosini filed a motion to withdraw, alleging Appellant failed to

cooperate     with   counsel,    insisted      counsel   file   frivolous   motions,   and

requested counsel issue subpoenas to witnesses who would not assist the

defense.     The motion also stated Appellant requested that Mr. Rosini

withdraw.     Motion to Withdraw, 3/31/2011, at ¶¶ 2-7.                Although the trial

court scheduled a hearing on the motion to withdraw for April 21, 2011, it

granted the motion on April 15, 2011, ordered the court administrator to

appoint new counsel, and cancelled the hearing.                     Order, 4/15/2011.2

Following Mr. Rosini’s departure, Michael Seward from the Public Defender’s

Office represented Appellant.

       On July 7, 2011, the trial court scheduled Appellant’s trial for

November 7, 2011.         Trial Order, 7/7/2011.         The trial court ordered that

pretrial motions be filed within 60 days.                Id.    On October 14, 2011,

Appellant filed a pro se motion for appointment of new counsel.                        On

November 4, 2011, Mr. Seward filed a motion for leave to withdraw from
____________________________________________


2
  Appellant, the Commonwealth, and the trial court repeatedly state Mr.
Rosini withdrew because he left the Public Defender’s Office.           N.T.,
3/8/2012, at 3, 7; N.T., 5/23/2012, at 3 (stating John Broda was Appellant’s
second counsel); Opinion, 1/6/2014, at 1 n.2; Anders Brief at 9; Appellee’s
Brief at 3; Appellant’s Advocate Brief at 7. Further, the trial court did not
rely on Mr. Rosini’s motion to withdraw when it found Appellant was not
denied his right to counsel. Opinion, 1/6/2012, at 1-2.




                                            -2-
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representation. On November 10, 2011, Mr. Seward filed an application for

a   trial   continuance     because     he     was   awaiting   additional   discovery.

Application for Trial Continuance, 11/10/2011.            On January 10, 2012, the

trial court scheduled a pretrial conference for February 3, 2012.             Criminal

Pretrial Order, 1/10/2011.3        On February 6, 2012, Appellant filed a pro se

application for a continuance requesting additional time to obtain counsel.

Application for Continuance, 2/6/2012.               That same day, the trial court

appointed John Broda, also from the Public Defender’s Office, to represent

Appellant.4

       On February 10, 2012, Mr. Broda filed a motion for leave to withdraw

as counsel. On March 8, 2012, the Honorable Robert B. Sacavage conducted

a hearing on Mr. Broda’s motion. At the hearing, the following occurred:

            THE DEFENDANT:       Your Honor, the rationale for Mr.
            Seward was that he wasn’t communicating with me, he
            was disagreeing as far as receiving certain evidence that I
            think we would need for trial, he didn’t want to go to trial.

            THE COURT: So I granted your motion and appointed
            somebody else for you.

            THE DEFENDANT: But I feel as though Mr. Broda – he’s
            from the same office – and as soon as I talked to Mr.
            Broda, he said him and Mr. Seward had already talked
____________________________________________


3
  The trial court had issued prior orders scheduling trial and/or pretrial
proceedings on various dates in January and February.
4
  This order was dated January 3, 2012, but filed February 6, 2012. It
states the trial court “previously granted Defendant’s Motion to Remove
Counsel/Defense Counsel’s Motion to Withdraw.” Order, 2/6/2012.



                                             -3-
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       about it. I said I felt as though it’s a conflict that he’s from
       the same office. I challenged Mr. Seward on his – his
       competence and I just feel that it’s a conflict of interest.

       ...

       MR. BRODA: I don’t believe it’s the nature of that. Again,
       I believe it’s a personal conflict with Mr. – as [Mr.]
       Seward’s – I don’t mean to put words in Mr. Jamison’s
       mouth, but I believe he wasn’t happy with Mr. Seward’s
       representation in the way he was handling his case.

       THE DEFENDANT: That’s correct.

       MR. BRODA: So that’s –

       THE COURT: Why do you think Mr. Broda can’t help you?

       THE DEFENDANT: Because the conflicts office, I just don’t
       think that they’re correctly representing me. And like I
       said, I feel as though Mr. Seward felt some type of way as
       far as how I challenged his – you know, his competence.
       And like I said, as soon as I talked to Mr. Broda, it seemed
       like they already had discussion about my case already
       [sic].

       THE COURT: Well, I would expect that they would have
       to, whoever the prior counsel was. In fact –

       THE DEFENDANT: No, I mean –

       THE COURT: -- the rules of ethics require[] that a lawyer
       who is assuming the case –

       THE DEFENDANT: I don’t mean it – I mean, as far as not
       wanting to take this case to trial, that’s the first thing, it
       don’t seem like he had any confidence in it. Like Mr.
       Seward has already said like this is a loss or its not triable,
       I should take a plea. They want me to take an open plea.
       I feel as though it’s a conflict in that aspect, that’s just
       how I feel.

       ...

       MR. BRODA:       I did advise him of my opinion of his
       defense.



                                    -4-
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       THE DEFENSE: His opinion was the same as Mr. Seward.
       That’s why I feel as though they already talked and Mr.
       Seward’s already, you know, put in his mind that I need to
       take a plea. His opinion was the same thing, if not exactly
       what Mr. Seward was saying. That’s just how I feel.

       THE COURT: Okay.

       THE DEFENDANT: I know I can’t pick what attorney I have,
       I understand that, I just want an attorney that’s going to
       represent me. I’m ready for trial. That’s the first thing I
       say, I’m trying to go to trial. I’m not trying to take no
       plea. So for someone to keep trying to convince me to
       take a plea — I’m not guilty, why should I plead guilty to
       something I didn’t do.

       I also got a problem, Mr. Broda said he’s been to trial like
       fifteen times and only won two. Well, I need a lawyer
       that’s going to represent me and willing — that has
       experience in trial, that’s going to fight for me.

       THE COURT: Well, the Court will — and this is your last
       opportunity to reconsider your decision because I am not
       inclined to just keep removing lawyers and appointing
       somebody that you’re going to wait us out until you are
       happy with [sic].     There are two individuals — three
       individuals, the first one left the case through other
       employment; the second one, you disagreed with their
       performance; now, what I’m hearing here is another
       performance-related argument. So you either have Mr.
       Broda, or if you don’t want him around, I will allow him to
       withdraw and appoint him as standby counsel and you can
       represent yourself.

       THE DEFENDANT: That’s my only choice?

       THE COURT: Well, you can take Mr. Broda. I’m not going
       to appoint another person. But I will assign — if you're
       going to be representing yourself, I will require him to be
       in the courtroom, anytime you can reconsider bringing him
       back and he will be readily available for you. So, do you
       want him to withdraw?

       THE DEFENDANT: I don’t want to represent myself, I don’t
       know the law, I guess I’m forced to stay with Mr. Broda.



                                  -5-
J-A10035-15


         THE COURT: Mr. Broda, you will continue to – Mr. Broda, I
         will deny your motion to withdraw.

N.T., 3/8/2012, at 3-8.

      On March 23, 2012, the trial court scheduled a pretrial conference for

May 4, 2012, jury selection for May 7, 2012, and trial for May 18, 2012.

Criminal Pretrial Order, 3/23/2012. On May 7, 2012, the Honorable Charles

H. Saylor conducted jury selection for Appellant’s trial. At the jury selection,

Mr. Broda requested a sidebar conference, which Appellant attended.         The

following exchange occurred:

         MR. BRODA: Yes, Your Honor. Mr. Jamison told me in his
         letter before and he’s telling me again to make a
         statement to the judge. I mentioned that – he’s saying
         he’s not ready to proceed to trial. I mean, judge made a
         pretrial determination –

         ...

         MR. BRODA:      Okay.    Your Honor, the judge made a
         determination that the case is ready to go to trial. Mr.
         Jamison is saying he’s not ready to proceed.

         THE COURT: And the – well, what’s the basis.

         MR. BRODA:      Well, he’s wanting – asking me to file
         motions and saying he has inmates from other institutions
         he wants to have subpoenaed and that hasn’t been
         completed for this case to go to trial.

         THE COURT: When is the trial scheduled for?

         MR. BRODA: May 18th.

         THE COURT: So that’s 11 days off so we will pick the jury
         today and whatever motions you – you want to file
         between now and then, you can do so but we will – I think
         perhaps many of them can be between now and the 18th,
         but we’ll proceed today.




                                     -6-
J-A10035-15



N.T., 5/7/2012, at 3-4.    The jury selection briefly resumed before the

following exchange occurred at sidebar:

        THE DEFENDANT:         I don’t understand why it wasn’t
        brought up at the pretrial. If it was brought up at pretrial
        then this all would have been addressed. I would like all
        this to be on record because of dealing with Mr. Broda.

        I requested Mr. Broda to file a habeas corpus on the
        grounds that the Commonwealth didn’t present enough
        evidence on the charges held for trial. He failed to do that.
        I requested Mr. Broda to file an omnibus pretrial motion[]
        requesting an appointment of an investigator for this case.
        He failed to do that.       Dismiss all the charges and
        information. He failed to do that. Sequester enough
        evidence. He failed to do that.

        Continuously prepare for trial, he’s failed to do that. I
        requested Mr. Broda to file a subpoena for [personnel] files
        of all officers and CO’s that would testify in this case to
        prepare for my defense.

        THE COURT:     Let me – you’re reading from something,
        right?

        THE DEFENDANT: Yes, sir.

        THE COURT: How about if you just submit that?

        THE DEFENDANT: What?

        THE COURT: How about if you just submit that?

        THE DEFENDANT: This is a rough draft, Your Honor. It’s
        just a rough draft. I prepared it for pretrial. It’s not that
        long. It’s only –

        THE COURT: What I told Mr. Broda was we pick the jury
        and then we’ll consider whatever motions he wants to file.

        THE DEFENDANT: But he’s not filing any. He’s telling me
        –

        THE COURT: He has the opportunity to file these motions.



                                    -7-
J-A10035-15


       THE DEFENDANT: But he’s telling me he’s not going to file
       them, Your Honor.

       THE COURT: Well –

       THE DEFENDANT: He’s told me straight up.

       THE COURT: We’re going to pick the jury today.

       THE DEFENDANT: All right. So if we pick the jury today
       and then it would be standby and then if we don’t get
       these filed, the things that we’re requesting at the time of
       trial, will it be continued?

       THE COURT: We will deal with those all those motions at
       some point, but we’re picking the jury.

       THE DEFENDANT: I don’t understand that because then
       with the rules of court I thought these motions have to be
       filed before – before – seven days before pretrial, which is
       why I told Mr. Broda to file them. So how is it that we file
       them between now and a trial?

       THE COURT: We’ll deal with any other motions at that
       time. The jury will be picked.

       THE DEFENDANT: I would at least like to read the rest of
       this so that it could be on the record.

       THE COURT: Okay. Keep your voice down.

       THE DEFENDANT: All right. Where did I stop at? I
       stopped at Mr. – I was requesting Mr. Broda to file a
       subpoena for [personnel] files of all officers and CO’s that
       would testify in this case and prepare for a defense. I
       think I have a right to those files. Mr. Broda failed to do
       that. He failed to contact me since the denial of the
       motion for Mr. Broda to withdraw as defense counsel. Mr.
       Broda has not spoken to –

       MR. TOOMEY: What was that last one?

       THE DEFENDANT: Mr. Broda has failed to contact me since
       the denial of the motion to withdraw as he – when we had
       the motion to withdraw as my defense counsel. Mr. Broda
       has not spoken with me about any trial strategy.



                                  -8-
J-A10035-15


       I requested Mr. Broda to file subpoenas to have any of the
       officers who can testify for this case. He’s failed to do
       that.   And the last one, Mr. Broda has failed to file
       transportation orders for all the prison witnesses that’s
       needed for trial. I requested Mr. Broda to provide me with
       a copy of the [b]ill of [p]articulars and he failed to do that.

       I filed a motion myself requesting the [b]ill of [p]articulars
       and I still haven’t gotten that.

       THE COURT: I understand – is that [President] Judge
       Sacavage who already ruled this that it’s ready for trial?

       MR. TOOMEY: Your Honor, we have – we had – he filed a
       motion that he wanted to represent himself or Mr. Broda to
       withdraw.

       THE DEFENDANT: May I ask –

       MR. TOOMEY: And the judge gave him the option of either
       he’s going to have Mr. Broda as his attorney or he could
       represent himself and have Mr. Broda as standby. He
       elected at that time – correct me if I’m wrong.

       THE DEFENDANT: I elected to keep Mr. Broda because I
       don’t know nothing about the law. But at the same time
       Mr. Broda is refusing – he’s telling me straight to my face
       that he’s not going to file none of these motions.

       THE COURT: Did you tell that – at the earlier sidebar with
       Mr. Broda, didn’t you say that [President] Judge Sacavage
       ruled that this case was ready to go to trial?

       MR. TOOMEY: He said it’s – he said it’s ready for trial. I
       said, it’s an old case. November of 2010 was when the
       incidents happened and I’m ready for trial. I have my
       witnesses subpoenaed, Mr. Broda had subpoenaed certain
       inmates from the State Correctional Institution, I filed a
       motion [in] limine that I wanted an offer of proof as to
       what these inmates were going to say because [they’re]
       inmates and it’s a security risk for the courthouse to have
       all these SCI inmates in our county jail and county facilities
       waiting for testimony.      I was coordinating with the
       Correctional Institution of Coal Township to have a video
       conference to determine that the admissibility –



                                    -9-
J-A10035-15


         THE COURT: But question was [sic] these issues have
         already been ruled on?

         THE DEFENDANT: No, they have not.

         MR. TOOMEY: He has not filed any other motions.

         THE COURT: There’s no –

         THE DEFENDANT:         And that is because Mr. Broda is
         refusing to file these motions. How can I prepare my –
         how can I fight this case if I don’t have the records of the
         officers? This is case is based [sic] solely on the testimony
         of the officers.

         THE COURT:     But all the – all the witnesses are being
         brought in.

         THE DEFENDANT: No.

         THE COURT:     You’ve subpoenaed everybody and is [sic]
         ready to go?

         MR. TOOMEY: Yes, sir.

         THE COURT: And you have some witnesses that you want
         to subpoena?

         THE DEFENDANT: Yes. I have more witnesses.              Staff
         members that were there.

         THE COURT:     You can do that by May 18th so we can
         proceed.

         THE DEFENDANT: He’s telling me no.

         THE COURT: Okay. I made –

         THE DEFENDANT: Are you going to order him to do that?
         He’s telling me no. Are you going to order him to file the
         motions that I asked and subpoena the witnesses?

         THE COURT: I can’t order him to do that. We’re here for
         purposes of jury selection and we’re going to proceed with
         the jury selection. That’s all.

N.T.5/7/2012, at    6-12.     Following    the   above   exchange, Mr.   Broda

represented Appellant at jury selection.

                                    - 10 -
J-A10035-15



       On May 11, 2012, while still represented by Mr. Broda, Appellant filed

a “Motion for the Subpoena of Witnesses” and a “Motion for the Subpoena of

Documents and Records,” and on May 15, 2012, Appellant filed an “Omnibus

Pretrial Motion for Relief.”

       On May 21, 2012,5 Appellant filed a pro se motion to withdraw counsel

and Mr. Broda filed a motion to withdraw as counsel.           That same day,

Appellant filed a motion for continuance. On May 23, 2012, the Honorable

William Harvey Wiest held a hearing. The following exchange occurred:

          [THE COURT]: Mr. Jamison, again, on the same day that
          Mr. Broda filed, May 21st, you filed a handwritten motion to
          withdraw counsel, I believe, requesting the same thing,
          that Mr. Broda no longer be involved in your case and that
          you be allowed to proceed pro se; is that correct?

          [APPELLANT]: That is correct.

          [THE COURT]: Okay. Anything else you would like to say
          about that?

          [APPELLANT]: Well, I was wondering, I was requesting
          within the motion – I was asking for a new counsel. If
          that’s not for not, then I will proceed pro se. I was already
          shot down once by [President Judge] Sacavage for new
          counsel, so if I’m going to be shot down again, I’ll proceed
          pro se.

          [THE COURT]: It’s the second counsel you have had.
          When your counsel is appointed, you don’t have the
          choices that you do if you are hiring counsel on your own.


____________________________________________


5
   It appears Appellant’s trial was continued from the May 18, 2012 trial
date. The certified record, however, does not contain an order continuing
the trial or setting a new trial date.



                                          - 11 -
J-A10035-15


       I’m not going to appoint new counsel for you, but I will
       appoint Mr. Broda to remain as stand-by counsel. You will
       be conducting your own trial, but he will be in the
       courtroom, so that if at any point you have any questions
       you would like to confer with him on, you will have that
       opportunity. But he will not take an active role in it; only
       to consult with you.

       [APPELLANT]: All right. I understand that. I understand
       that. Would it be possible that I be appointed another
       different stand-by counsel? Me and Mr. Broda just don’t
       see eye to eye. He disagree[s] with me on everything.

       [THE COURT]: No, sir. Again, this is your second counsel.
       We have done what we needed to in appointing counsel for
       you. We do not have to keep appointing new ones.

       In addition – I know this is not on the schedule – but you
       had several motions filed, handwritten motions filed, the
       11th of May two of them and one on the 15th of May,
       entitled motion for subpoena of witnesses, motion for
       subpoena of documents and records, and the last one
       omnibus pretrial motion for relief.

       [APPELLANT]: That’s what I filed for a continuance on.

       [THE COURT]: That is part of the omnibus pretrial. I’m
       going to deny all of these motions on the basis that they
       are not timely filed. We have a jury selected. We are
       going to go ahead with the jury trial on Friday. All the
       witnesses that you subpoenaed, the arrangements have
       been made for them to be here, so it will not be delayed.
       It will occur on Friday as scheduled.

       [APPELLANT]: I disagree that it is timely filed now to
       represent myself [sic]. I know I have to – how am I not
       supposed to be prepared for trial, seeing how Mr. Broda
       and I disagreed on the motions? You yourself told me you
       gave me leave of court at jury selection to file the motions.

       [THE COURT]: I did not conduct jury selection.

       MR. TOOMEY: It was Judge Saylor.

       MR. JAMISON: He gave me leave of court to file all the
       motions necessary. That’s the reason I filed them myself,
       because Mr. Broda refused to file them.

                                  - 12 -
J-A10035-15


        ...

        THE COURT: So all these motions are going to have to be
        ruled upon?

        ...

        [THE COURT]: Are you prepared, Mr. Jamison, to defend
        those motions or to present those motions and any
        testimony required with them now?

        [APPELLANT]: No, I am not, Your Honor.

        ...

        THE COURT: After consideration with my law clerk and the
        statement made by Judge Saylor at the time of jury
        selection, I’m going to grant [Appellant] an opportunity to
        present his motions. We will schedule a half day for it as
        soon as possible. Of course, you will have notice of when
        that half day is going to be. It probably will not be until
        sometime next month.

        Of course, that means a delay in the trial.

N.T., 5/23/2012, at 2-5.

     Appellant filed additional pro se pre-trial motions.     On August 30,

2012, Judge Saylor held a hearing on Appellant’s motions, which he denied.

In an order issued August 31, 2012, Judge Saylor stated:

        By way of further explanation, in his Motion [Appellant]
        has raised issues that are either premature and must be
        raised at trial, or that are of no relevance to the case
        presently before the Court.         In addition, [Appellant]
        appears to be attempting to use the criminal process to
        disrupt the prison system. For example, [Appellant] seeks
        to subpoena for attendance at trial cabinet level
        Department of Corrections officials.        Also, among his
        requests is that he be provided statistical data concerning
        all staff disciplinary hearing and incident logs from 2000 to
        2010.

Order, 8/31/2012.


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J-A10035-15



       On February 11, 2013,6 prior to jury selection, the following exchange

occurred in the chambers of President Judge Sacavage:

          THE COURT: Now, you have a right to remain silent. You
          understand your rights of a trial. You don’t have to put on
          a defense, you don’t have to call any witnesses. If you
          choose to present a defense, then – and you choose to
          testify, your character then comes into –

          THE DEFENDANT: I understand that.

          THE COURT: – issue. Also the – you have – I think I
          discussed this with you at an earlier time. Your decision to
          represent yourself is up to you. You’re an intelligent,
          competent adult, and – but you must be responsible and
          follow the same rules of trial that anyone has to.

          THE DEFENDANT: I understand, sir.

          THE COURT: So –

          MR. TOOMEY: Was there a waiver of his right to have an
          attorney represent him, a written waiver?

          THE DEFENDANT: I waived my rights in front of –

          MR. TOOMEY: I thought there may have to be a written
          waiver.

          THE DEFENDANT:        Well, I filed the motion myself to
          withdraw counsel and everything. I have the motion here,
          I believe, Your Honor.

          THE COURT:       Here’s an August 21st, 2012, footnote
          number one. Defendant’s motion to withdraw counsel was
          filed May 21st, 2012, is moot as the defendant has elected
____________________________________________


6
  Between September 2012 and February 2013, Appellant filed various
motions, which Judge Saylor ruled upon in a January 25, 2013 order. He
granted Appellant’s motion for communication, denied his motion for
reconsideration, denied his motion for disqualification, and granted in part
and denied in part his motion for additional juror information questionnaires.
Order, 1/25/2013. In addition, trial was continued on various occasions.



                                          - 14 -
J-A10035-15


       to represent himself and [Mr.] Broda has been appointed
       standby.

       THE DEFENDANT: Did we have a hearing that day in front
       of [Judge] Wiest, and he asked me, do I want to represent
       myself. Because I had filed the motion and then we had
       the hearing. Remember we had the hearing, and he asked
       me if I wanted to represent myself, so I understand
       everything.

       THE COURT: I think the District Attorney’s asking about –
       it’s a one page written form. The form advises you of your
       right to counsel. It discusses what an attorney can do for
       you. I will go over the contents of it at this point.

       The Court has to make a decision that you’re – has to
       agree that you should represent yourself because you are
       making an intelligent, voluntary, competent, knowing
       decision to do so, and that had never really come into
       play. My observations of you are that you are competent,
       intelligent, and you’re doing this voluntarily.

       An attorney – you had previous attorneys before
       representing you, so in your experience you have some
       idea, I take it, as to what attorneys can do for you. Is that
       correct?

       THE DEFENDANT: Yes, I do.

       THE COURT: An attorney can help pick a jury, can file
       motions on your behalf. And this is a 2011 case. There
       have been many motions filed and disposed of. Your
       attorney can cross-examine witnesses that are brought
       against you.     An attorney can [negotiate] a plea
       agreement, could represent you at trial, represent you on
       appeal, make objections to evidentiary matters, to
       procedural matters, so that they can be preserved for later
       review at the appellate court level.

       He can make opening statements, closing arguments
       during the trial, and generally represent you and protect
       your rights under the constitution at all stages of the
       proceedings. And you are aware of this?

       THE DEFENDANT: Yes.



                                  - 15 -
J-A10035-15


          THE COURT:       And there has been attorneys [sic]
          appointed, and at this juncture Mr. Broda was appointed
          by this Court in August to act as standby counsel.
          Correct?

          THE DEFENDANT: Yes.

          THE COURT: And he is here. He’s in the room here at the
          time. And, Mr. Broda, for the record you are still standby
          counsel, are you not?

          MR. BRODA: Yes, Your Honor.

          THE COURT: So you will be sitting in the courtroom
          behind the defendant.

          MR. BRODA: Yes, Your Honor.

          THE COURT: If you wish to change your mind, take him
          on as counsel, you may do so at any time.

          THE DEFENDANT: I understand, Your Honor.

          THE COURT: I’m satisfied that he can represent himself.

N.T., 2/11/2013, at 10-13.

       A jury convicted Appellant of one count of aggravated assault and

acquitted him of all other charges. Verdict, 2/25/2013. On March 25, 2013,

the trial court sentenced Appellant to three to six years’ imprisonment. On

April 5, 2013, Appellant filed post-sentence motions, which the trial court

denied on May 13, 2013.           On July 11, 2013, a letter from Appellant to

President Judge Sacavage was docketed.7            That same day, the trial court

issued an order treating the letter as a motion for allowance of appeal nunc

pro tunc, granting the motion, and ordering the clerk of courts to file
____________________________________________


7
 The letter stated Appellant filed a notice of appeal on May 28, 2013 and
had the prison cash slips as proof of filing.



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Appellant’s notice of appeal.        On August 2, 2013, Appellant filed a pro se

concise    statement     of   errors    complained   of   on   appeal   pursuant   to

Pennsylvania Rule of Appellate Procedure 1925(b) and the trial court issued

its Rule 1925(a) opinion on January 6, 2014.

        On May 30, 2014, Appellant filed an application for appointment of

counsel. On June 18, 2014, this Court ordered that the trial court appoint

counsel to represent Appellant on appeal. The trial court appointed counsel

on July 21, 2014. On November 14, 2014, counsel filed an Anders8 brief

and a motion for leave to withdraw.

        The Anders brief raised the following issues:

          1. Denial of Right to Counsel: The [trial court] erred in not
          providing counsel to [Appellant] at trial.

          2. Excluded Hearsay: The [trial court] erred in excluding
          certain hearsay evidence which [Appellant] wished to use
          at trial.

          3. Motion to Suppress: The [trial court] erred in not
          suppressing video footage.

          4. Brady Violation: The trial court erred in not sanctioning
          the Commonwealth for untimely disclosure of certain video
          footage.

          5. Inconsistent Verdict: The guilty verdict should be
          thrown out as inconsistent with the acquittal on the other
          charges.

          6. Evidence Not in Possession of the Jury: The [trial court]
          erred in not allowing the jury to possess certain evidence
          in deliberations.
____________________________________________


8
    Anders v. California, 386 U.S. 738 (1967).



                                          - 17 -
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          7. Weight and Sufficiency of the Evidence: The verdict was
          contrary to the weight and sufficiency of the evidence.

Anders Brief at 6 of 20.

       On May 5, 2015, this Court found Appellant’s first issue, whether he

was denied his right to counsel, was not wholly frivolous.           We denied

counsel’s motion to withdraw and ordered counsel to file an advocate’s brief

as to this issue. We found the remaining issues raised in the Anders brief

to be frivolous and, after an independent review of the record, found no

additional non-frivolous claims.           On June 29, 2015, Appellant filed an

Advocate’s brief.9

       Appellant’s sole remaining issue maintains that he was denied his right

to counsel. We agree.

       The Sixth Amendment to the United States Constitution and Article I,

Section 9 of the Pennsylvania Constitution provide a defendant with the right

to counsel for his or her defense. Commonwealth v. Lucarelli, 971 A.2d

1173, 1178 (Pa.2009) (quoting Rothgery v. Gillespie County, --- U.S. ---,

128 S.Ct. 2578, 2583 n. 8, 171 L.Ed.2d 366 (2008) and Commonwealth v.

McDonough, 812 A.2d 504, 506 (Pa.2002)).                  The right to counsel,



____________________________________________


9
  We note with disapproval that counsel filed the advocate’s brief on June
25, 2015, more than 45 days following the issuance of this Court’s May 5,
2015 memorandum, which required him to file an advocate’s brief within 45
days. We further note the Commonwealth did not file a response to
Appellant’s advocate’s brief.



                                          - 18 -
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however, is not absolute. Id. (quoting Commonwealth v. Randolph, 873

A.2d 1277, 1282 (Pa.2005)).

      A defendant who seeks court-appointed counsel “does not have a right

to choose the particular counsel to represent him.”        Commonwealth v.

Rucker, 761 A.2d 541, 542 n.1 (Pa.2000) (citing Commonwealth v.

Moore, 633 A.2d 1119, 1125 (Pa.1993)). After counsel has been appointed,

the defendant cannot “change to other assigned counsel unless a substantial

reason exists for the change.” Id. (citing Pa.R.Crim.P. 316(c)(ii)).

      A defendant can waive or forfeit his right to counsel. Lucarelli, 971

A.2d at 1178-79. Our Supreme Court has explained:

         Waiver is “an intentional and voluntary relinquishment of a
         known right.” By contrast, forfeiture . . . does not require
         that the defendant intend to relinquish a right, but rather
         may be the result of the defendant’s “extremely serious
         misconduct” or “extremely dilatory conduct.”

Id. at 1179 (internal citations omitted).

      If a defendant seeks to waive his right to counsel, “the judge shall

ascertain from the defendant, on the record, whether this is a knowing,

voluntary, and intelligent waiver of counsel.” Commonwealth v. Phillips,

93 A.3d 847, 852 (Pa.Super.2014) (citing Pa.R.Crim.P. 121(c)). The waiver

colloquy must “contain a clear demonstration of the defendant’s ability to

understand the questions posed to him during the colloquy.”          Id. (quoting

Commonwealth v. McDonough, 812 A.2d 504, 507 n.1 (Pa.2002)).                    A

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

crime]   before   accepting   waiver    of   counsel.”   Id.   at   853   (quoting

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Commonwealth v. Clyburn, 42 A.3d 296, 299 (Pa.Super.2012) (emphasis

deleted and alteration in original). Pennsylvania Rule of Criminal Procedure

121 governs waiver of the right to counsel and provides:

        (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)(2).   The trial court must further inquire “about the

defendant’s age, educational background, and basic comprehension skills.”



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Phillips, 93 A.3d at 853 (citing Pa.R.Crim.P. 121(C)).       Further, this Court

reviews “the totality of the relevant circumstances only after we decide the

trial court has met the minimum requirements of Rule 121, to determine

whether the defendant’s waiver of the constitutional right to counsel was a

knowing, voluntary, and intelligent waiver.” Id. at 854.10

       In Lucarelli, our Supreme Court held that Rule 121 does not apply

where a defendant forfeits his right to counsel. 971 A.2d at 1179. The Rule

applies only where the defendant waives his right to counsel.         Id.   The

Court held a defendant forfeits his right to counsel where his “course of

conduct demonstrates his or her intention not to seek representation by

private counsel, despite having the opportunity and financial wherewithal to

do so.” Id. It further noted that:

          Upon examining the jurisprudence developed by other
          jurisdictions regarding forfeiture of the right to counsel, we
          observe that defendants have been held to have forfeited
          the right to counsel where they have either engaged in
          physically abusive and threatening conduct, or have
          engaged in dilatory conduct. See e.g., Minnesota v.
          Lehman, 749 N.W.2d 76, 81-82 (Minn.Ct.App.2008),
          review denied, 2008 Minn. LEXIS 478 (Minn. filed August
____________________________________________


10
   The Commonwealth concedes the trial court did not conduct a proper
colloquy and argues Appellant forfeited his right to counsel. Appellee’s Brief
at 3 (noting the colloquy did not comply with all requirements of
Pa.R.Crim.P. 121). As noted in our prior opinion, the trial court found
Appellant’s right to counsel was not violated because, based on the totality
of the circumstances, his request to proceed pro se was “unequivocal.”
Opinion, 1/6/2012, at 1-2. The trial court reasoned that it “was not
obligated to conduct a colloquy, although it in fact did so.” Id.




                                          - 21 -
J-A10035-15


        5, 2008) (collecting cases and holding that defendant
        forfeited his right to court-appointed counsel where
        defendant attacked and beat the attorney in open court);
        Bultron v. State, 897 A.2d 758 (Del.2006) (holding that
        defendant forfeited his right to counsel where he engaged
        in ongoing abuse of his attorney and requiring defendant
        to proceed pro se at trial); Wilkerson v. Klem, 412 F.3d
        449, 454 (3d Cir. 2005) (holding that a defendant who had
        been duly notified of the date of his trial, who had been
        advised to obtain counsel in sufficient time to be ready for
        trial, and who appeared on the scheduled date without
        counsel and with no reasonable excuse for his failure to
        have counsel present, forfeited his right to counsel).

Id. at 1179-80.

     In Commonwealth v. Kelly, this Court found a defendant who was

appointed   counsel   forfeited   his     right   to   counsel.   5   A.3d   370

(Pa.Super.2010). We reasoned:

        Kelly was a criminal defendant who had been unwilling to
        cooperate with all three counsel assigned to him; who
        argued all counsel were incompetent because they refused
        to argue what he believed was the law; who, the day after
        his pro se motion to withdraw his first guilty plea was
        granted, filed pro se an omnibus pre-trial motion seeking
        suppression of evidence on a ground the trial court had
        already addressed (validity of search warrant); who
        wanted a counsel, but only one who would please him;
        who treated appointed counsel with disdain; whose trial
        had been already postponed because he could not agree
        with assigned counsel (counsel 2); who had been warned
        by the trial court that failure to cooperate with assigned
        counsel (counsel 3) would result in him representing
        himself pro se at trial; who sought to have other counsel
        appointed to him (who would have been counsel 4) and
        postpone the trial instead of trying to cooperate with
        counsel 3; and who clearly was not interested in listening
        closely [to] what [the trial judge] was telling him,
        consumed as he was in making his point counsel were
        ineffective and he knew the law better than assigned
        counsel.


                                        - 22 -
J-A10035-15



Id. at 381-82.11

       The trial court did not conduct a proper colloquy of Appellant at any

stage of the proceedings.         Although President Judge Sacavage inquired as

to some elements of Rule 121 prior to the February 11, 2013 jury selection,

his colloquy was not complete. He did not ensure Appellant understood the

nature of the charges, the elements of each charge, or the permissible range

____________________________________________


11
   The court in Kelly noted the case differed from Lucarelli and the other
Pennsylvania forfeiture cases because, in Kelly, the defendant was eligible
for court-appointed counsel. 5 A.3d at 379 n.7.

The Kelly court also noted a “hybrid situation” where a defendant loses his
right to counsel, stating:

          [T]here is a hybrid situation (“waiver by conduct”) that
          combines elements of waiver and forfeiture.        Once a
          defendant has been warned that he will lose his attorney if
          he engages in dilatory tactics, any misconduct thereafter
          may be treated as an implied request to proceed pro se
          and, thus, as a waiver of the right to counsel.

          ....

          These are not “waiver” cases in the true sense of the word.
          In many situations there will be defendants who engage in
          dilatory conduct but who vehemently object to being
          forced to proceed pro se. These defendants cannot truly
          be said to be “waiving” their Sixth Amendment rights
          because although they are voluntarily engaging in
          misconduct knowing what they stand to lose, they are not
          affirmatively requesting to proceed pro se. Thus, instead of
          “waiver by conduct,” this situation more appropriately
          might be termed “forfeiture with knowledge.”

Id. at 379 (quoting United States v. Goldberg, 67 F.3d 1092, 1100-01
(3d Cir. 1995)).



                                          - 23 -
J-A10035-15



of sentences for the charges.     He did not inform Appellant there were

possible defenses that counsel might be aware of which would be

permanently lost if not raised or that Appellant had rights that would be lost

permanently if not timely raised, and he did not advise Appellant his right to

challenge errors would be lost permanently if not timely asserted.       N.T.,

2/11/2012, at 10-13.      Further, the trial court did not inquire about the

defendant’s age, educational background, and basic comprehension skills.

Because the trial court failed to comply with the minimum requirements of

Rule 121, and failed to inquire as to Appellant’s background, Appellant did

not waive his right to counsel.    See Phillips, 93 A.3d at 855 (vacating

judgment of sentence and remanding for further proceedings where trial

court failed to meet minimum requirements of Rule 121 and failed to

question appellant on qualitative aspects of waiver of counsel at critical

stages of proceedings).

      Because Appellant did not waive his right to counsel, his constitutional

right to counsel was violated unless he forfeited this right. See Lucarelli,

971 A.2d at 1179.     Appellant filed pro se motions to remove two court-

appointed attorneys because he disagreed with their assessment of his case,

they refused to advance legal arguments Appellant believed had merit, and

Appellant believed a conflict of interest existed because they both were from




                                    - 24 -
J-A10035-15



the Public Defender’s Office.12 There is no evidence, however, that Appellant

treated either counsel with disrespect or disdain.            Further, although

Appellant filed motions that delayed trial, it is not clear that any delay was

intentional. See N.T., 3/8/2012, at 3-8; N.T., 5/7/2012, at 3-4, 6-12. It

appears Appellant may not have known counsel did not file the motions he

requested until after the pretrial conference.13 N.T., 5/7/2012, at 6-12. Nor

is there evidence Appellant “engaged in physically abusive and threatening

conduct.” See Lucarelli, 971 A.2d at 1179.14

       Because Appellant proceeded at trial pro se, but did not waive or

forfeit his right to counsel, we find his right to counsel pursuant to the Sixth

Amendment of the United States Constitution and Article I, Section 9 of the

Pennsylvania Constitution was violated.

       Judgment      of   sentence     reversed.   Case   remanded   for   further

proceedings. Jurisdiction relinquished.

____________________________________________


12
  As noted above, Appellant’s first court-appointed counsel filed a motion to
withdraw, but the trial court did not rely on this motion when finding
Appellant was not denied his right to counsel.        Motion to Withdraw,
3/31/2011; Opinion, 1/6/2014.
13
   Although the trial court issued an order stating Appellant was attempting
to disrupt the prison system, it made no finding that Appellant was engaging
in dilatory conduct during the court proceedings or conduct which could be
construed as disdain or disrespect.
14
   Further, there was no waiver by conduct. Appellant did not engage in
dilatory tactics or any other misconduct after being warned he would lose his
attorney if he engaged in such conduct. See Kelly, 5 A.3d at 379.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




                          - 26 -
