J-S13036-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
DOUGLAS AKINS,                           :
                                         :
                 Appellant               :      No. 1356 WDA 2018

       Appeal from the Judgment of Sentence Entered September 5, 2018
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-MD-0000499-2018

BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED: May 24, 2019

        Douglas Akins (Appellant) pro se appeals from the judgment of

sentence of 45 days to 6 months of incarceration entered after Appellant

was found guilty of indirect criminal contempt (ICC) for violating a protection

from abuse (PFA) order.1 Upon review, we vacate Appellant’s judgment of

sentence and remand for a new trial with instructions.

        We provide the following background. On September 12, 2017, a final

PFA order was entered against Appellant, protecting Appellant’s wife, T.E.,

for a three-year period.     On August 24, 2018, an ICC complaint was filed

against Appellant for violating that PFA order due to contact he had with T.E.

following the entry of the PFA order.        On September 5, 2018, Appellant

appeared pro se for his ICC hearing.         On the record, the Commonwealth


1   See PFA Act, 23 Pa.C.S. §§ 6101-6122.



* Retired Senior Judge assigned to the Superior Court.
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advised Appellant of, inter alia, his right to counsel. N.T., 9/5/2018, at 3.

The record does not indicate that Appellant waived his right to counsel,

although Appellant proceeded pro se.        At the hearing, Appellant orally

moved to dismiss the ICC charge because the District Attorney did not

approve the complaint and the issuing authority did not sign the complaint

or affidavit.   Id. at 6-7.   Officer Aaron Hill of the Erie Police Department

testified to the procedure he followed in filing the underlying complaint. Id.

at 8-10. The trial court advised Appellant that the motion should have been

submitted before the hearing via a written motion, but the trial court

accepted the oral motion and denied it. Id. at 11.

      Appellant proceeded to a nonjury trial on the ICC charge.              The

Commonwealth called T.E. and Officer Hill as witnesses.       Specifically, T.E.

testified that on July 16, 2018, Appellant pushed his way into T.E.’s home,

smashed a cake on the floor, pushed T.E., threatened to kill her if she called

the police, and fled.     Id. at 13, 15-17.      Officer Hill testified that he

responded to the scene, and T.E. relayed what had occurred.         Officer Hill

observed cake outside and on the floor of the apartment, and T.E.’s being

frustrated and scared. Id. at 19-20. Appellant also testified, claiming that

he was not at T.E.’s house that day. Id. at 17-18. At the conclusion of the

trial, Appellant was found guilty of ICC and sentenced as indicated supra.

      On September 7, 2018, Appellant pro se filed a motion for writ of

habeas corpus, which the trial court denied on September 14, 2018.


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      On September 20, 2018, Appellant pro se filed the instant notice of

appeal.2 On appeal, Appellant claims that the trial court erred in denying his

oral motion to dismiss. Appellant’s Brief at 6. Before we reach the issues

raised by Appellant, we address sua sponte whether Appellant’s right to

counsel was satisfied.3




2 Appellant was not ordered by the trial court to file a Pa.R.A.P. 1925(b)
statement, and he did not file one. In its two-sentence Pa.R.A.P. 1925(a)
opinion, the trial court states that it “relies on Rule 513(B)(1), (2), and (3)
of the Pennsylvania Rules of Criminal Procedure to address the issues of the
Appellant’s appeal.” Trial Court Opinion, 11/8/2018. Appellant’s sole claim
on appeal is that the trial court erred in denying his motion to dismiss, which
was based on a claim that the District Attorney did not approve the
complaint and the issuing authority did not sign the complaint or affidavit.
This Court does not find that a cursory citation to rules regarding the
issuance of arrest warrants satisfies the trial court’s duty to provide the
reasons for the ruling complained of. See Pa.R.A.P. 1925(a)(1).
3  We are mindful that typically courts may not raise issues sua sponte.
Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa. 2010) (“[C]ourts
generally should not act sua sponte to raise claims or theories that the
parties either did not raise below or failed to raise in their appellate
pleadings.”); In re Estate of Tscherneff, 203 A.3d 1020, 1027 n.3 (Pa.
Super. 2019) (“There are a few discrete, limited non-jurisdictional issues
that courts may raise sua sponte.”). However, satisfaction of a party’s right
to counsel, however derived, is an issue this Court routinely addresses sua
sponte. See Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa. Super.
2017) (holding that “this Court has a duty to review whether [Johnson]
properly waived his right to counsel prior to his suppression hearing even
though [Johnson] has not asserted this issue on appeal”); Commonwealth
v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (holding sua sponte that
“where an indigent, first-time PCRA petitioner was denied his [rule-based]
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”); see also In re Adoption of L.B.M., 161 A.3d 172,
183 (Pa. 2017) (Opinion Announcing the Judgment of the Court, with five
Justices joining this section) (“Whether the right to counsel is conferred by
(Footnote Continued Next Page)

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            A charge of [ICC] consists of a claim that a violation of an
      Order or Decree of court occurred outside the presence of the
      court. Where a PFA order is involved, an [ICC] charge is
      designed to seek punishment for violation of the protective
      order. As with those accused of any crime, one charged with
      [ICC] is to be provided the safeguards which statute and criminal
      procedures afford.

Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007)

(citations and quotation marks omitted). One such safeguard when an ICC

charge is based upon a violation of a PFA order is a statutory right to

counsel.4   See 23 Pa.C.S. § 6114(b)(3) (“The defendant shall not have a

right to a jury trial on a charge of ICC. However, the defendant shall be

entitled to counsel.”); accord Commonwealth v. Ashton, 824 A.2d 1198,

1203 (Pa. Super. 2003) (including “the assistance of counsel” as one of the

procedural safeguards for defendants charged with ICC).

      Based on the foregoing, we will address whether Appellant’s right to

counsel was violated when he proceeded pro se at trial. When a defendant
(Footnote Continued)   _______________________

constitution or        statute,      the    right   having   been   conferred   must   be
protected.”).

4 Whether a defendant charged with ICC also has a constitutional right to
counsel at all stages of the contempt proceedings is less clear.         In
Commonwealth v. Moody, 125 A.3d 1, 14 (Pa. 2015), our Supreme Court
examined the trajectory of several United States Supreme Court and
Pennsylvania cases regarding the right to counsel in non-felony cases to
determine when the Sixth and Fourteenth Amendment right to counsel
attaches in direct criminal contempt cases. Although the Court briefly and
indirectly discussed the right to counsel in ICC cases as a point of
comparison, no recent case has analyzed directly and thoroughly the
nuances of such a right in the ICC context. Because we raise this issue sua
sponte, and the constitutional right to counsel is not necessary to our
holding here today, we decline to engage in such an analysis at present.

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seeks to waive the right to counsel in a criminal proceeding before a judge

after the preliminary hearing, “the judge shall ascertain from the defendant,

on the record, whether this is a knowing, voluntary, and intelligent waiver of

counsel.”   Pa.R.Crim.P. 121(C).   “Failing to conduct an on[-]the[-]record

colloquy pursuant to Rule 121(C) before allowing a defendant to proceed pro

se constitutes reversible error.” Johnson, 158 A.3d at 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).

“[W]aiver [cannot] be presumed where the record is silent. The record must

show, or there must be an allegation and evidence which show, that an

accused was offered counsel but intelligently and understandingly rejected

the offer. Anything less is not waiver.” Commonwealth v. Monica, 597

A.2d 600, 603 (Pa. 1991).

      Rule 121(A)(2) provides as follows regarding a sufficient waiver.

      (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;



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              (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).

        In the instant case, at the beginning of Appellant’s ICC hearing, the

Commonwealth summarily advised Appellant of his right to counsel in the

middle of a list of several other rights. However, the record does not contain

an on-the-record colloquy confirming that Appellant knowingly, voluntarily,

and intelligently waived his right to counsel pursuant to Rule 121.

Therefore, we conclude that the trial court erred by not conducting an on-

the-record colloquy that comported with Rule 121.

        Accordingly, because Appellant was deprived of his statutory right to

counsel, we vacate Appellant’s judgment of sentence and remand for the

appointment of counsel, or a full waiver colloquy, and a new trial.5         See



5   In light of our disposition, we do not reach Appellant’s claims on appeal.

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Johnson, 158 A.3d at 123 (vacating and remanding for a new suppression

hearing and new trial).

      Judgment of sentence vacated. Case remanded for new trial with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019




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