J-S09038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEE MASON MCFALLS                          :
                                               :
                       Appellant               :   No. 1446 EDA 2019

          Appeal from the Judgment of Sentence Entered April 10, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0007695-2018


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                FILED APRIL 24, 2020

        Appellant, Lee Mason McFalls, pro se, appeals from the judgment of

sentence of 72 hours to six months of confinement, which was imposed after

he pleaded guilty to driving under the influence (“DUI”) – general impairment

– incapable of safely driving – first offense. We remand for a hearing pursuant

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

        “On April 10, 2019, [Appellant], represented by Attorney Francis J.

Genovese, entered into a negotiated guilty plea as to one count of [DUI. ] . .

. On May 10, 2019, [Appellant], pro se, filed the instant timely notice of direct

appeal.[ ]” Trial Court Opinion, dated September 13, 2019, at 1-2. On May

14, 2019, trial counsel filed a document entitled “Withdrawal of Appearance”

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S09038-20


and consisting of one sentence: “Please WITHDRAW MY APPEARANCE for the

above-named defendant.”

      “By Order dated May 15, 2019, the [trial court] directed [Appellant] to

file a statement of errors complained of on appeal, pursuant to Pennsylvania

Rule of Appellate Procedure 1925(b). The [trial c]ourt mailed the 1925(b)

Order to [Appellant]’s attorney of record at the time.” Trial Court Opinion,

dated September 13, 2019, at 2 & n.3.

      On May 22, 2019, Appellant wrote a letter to the Montgomery County

Clerk of Courts that was docketed on May 29, 2019, and stated in its entirety:

For case CP-46-CR-0007695-2018, Commonwealth v. Lee Mason McFalls,

please be sure to send all documents and correspondence to my mailing

address as listed on this letter and on the Notice of Appeal. I have not received

the 1925(b) Concise Statement Order docketed on May 15, 2019, as it was

sent to my prior attorney, who filed his Withdrawal of Appearance on May 14,

2019. Please send that document and any future materials to me directly, as

I am a Pro Se appellant.

“A second 1925(b) [order] was mailed directly to [Appellant] on June 6, 2019.”

Trial Court Opinion, dated September 13, 2019, at 2 n.3.

By Order dated June 11, 2019, counsel for [Appellant] was granted the right

to withdraw from the case[.] . . . Prior to counsel’s withdrawal, and without

being able to hold a Grazier hearing due to [Appellant]’s incarceration in

Florida, th[e trial c]ourt received [Appellant]’s pro se 1925(b) statement on


                                      -2-
J-S09038-20


June 6, 2019. As th[e trial c]ourt has received no further communication from

[Appellant], [it] address[ed] the pro se 1925(b) concise statement [in its

opinion.]

Id. at 2.

      Accordingly, Appellant appears before this Court pro se. There is no

indication in the certified record that Appellant ever made a knowing,

intelligent waiver of his right to counsel on appeal pursuant to Grazier.

      A criminal appellant has a constitutional right to counsel on direct

appeal. Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).

Pursuant to Grazier, 713 A.2d at 82, “[w]hen a waiver of the right to counsel

is sought at the . . . appellate stages, an on-the-record determination should

be made that the waiver is a knowing, intelligent, and voluntary one.”         A

Grazier hearing is required before we may adjudicate an appeal even when it

is clear from the record that a particular appellant “clearly and unequivocally

indicates a desire to represent himself,” Commonwealth v. Robinson, 970 A.2d

455, 459-60 (Pa. Super. 2009) (en banc), and even when neither of the

parties challenged the lack of a hearing. See Commonwealth v. Stossel, 17

A.3d 1286, 1290 (Pa. Super. 2011).

      In the current action, the trial court stated in its opinion that Appellant

“made clear his intention to proceed pro se[.]” Trial Court Opinion, dated

September 13, 2019, at 2.      We disagree.     The only communication from

Appellant in the certified record about the status of his representation is the


                                      -3-
J-S09038-20


letter dated May 22, 2019, in which stated that his counsel had filed a

withdrawal of appearance and that “I am a Pro Se appellant.”        The letter

consequently is ambiguous as to whether Appellant wanted to proceed pro se

or felt that he had no other choice but to represent himself after his counsel

had entered a withdrawal of appearance. Assuming the letter was expressing

Appellant’s desire for self-representation, there is still no indication in the

certified record that the trial court inquired, pursuant to Pa.R.Crim.P.

121(A)(2) (setting forth relevant considerations for determining whether a

criminal defendant is making a knowing, intelligent, and voluntary decision to

proceed pro se), whether that decision was knowing, intelligent, and

voluntary.      In light of the unequivocal authority cited above, we are

constrained to remand this case for a proper Grazier hearing, including a full

consideration of the factors set forth at Pa.R.Crim.P. 121(A)(2).

      On remand, the trial court must hold a Grazier hearing and thereafter

appoint counsel, if necessary.    We recognize the logistical difficulties of

arranging an Grazier hearing with Appellant incarcerated in Florida, but we

find no authority allowing for an exception to Grazier for an appellant who is

incarcerated out-of-state or for any other reason. As our remand may change

the content and character of this appeal substantially, we relinquish our

jurisdiction.

      Case remanded with instructions. Jurisdiction relinquished.




                                     -4-
J-S09038-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/20




                          -5-
