J-S26005-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

VICTOR WESLEY HARE, III

                        Appellant                   No. 994 MDA 2016


           Appeal from the Judgment of Sentence May 19, 2016
         In the Court of Common Pleas of Northumberland County
            Criminal Division at No(s): CP-49-CR-0001359-2014


BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 31, 2017

     Victor Wesley Hare, III, appeals from the judgment of sentence of five

to ten years imprisonment that was imposed after a jury convicted him of

possession of a firearm by a prohibited person. We reverse and remand for

a new trial because Appellant was improperly forced to proceed pro se.

     On October 13, 2014, Point Township Police Officers and medical

personnel responded to an emergency call about an eleven-year-old

unresponsive child at a residence on Springhouse Road, Northumberland.

The child in question was deceased. Due to the nature of the eleven-year-

old’s death, police began to secure the scene.   Appellant was present and

admitted that he had firearms in the home.         Police, as part of their

investigation in the child’s death, conducted a criminal background check of


* Former Justice specially assigned to the Superior Court.
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Appellant. Appellant had multiple felony convictions, and, after learning of

those offenses, police obtained a search warrant for the residence in

question.    A shotgun and two rifles were recovered from Appellant’s

bedroom.

      Our review of the public docket sheets indicates that, in a separate

criminal action, 512 of 2015, Appellant was charged with homicide and

various other offenses due to the events that occurred on October 13, 2014.

On April 20, 2017, a jury found Appellant guilty of one count each of drug

delivery resulting death and involuntary manslaughter and two counts each

of endangering the welfare of a child and reckless endangerment. Appellant

was acquitted of aggravated assault and indecent assault.

      In the present case, Appellant was charged with possession of a

firearm by a prohibited person, and, on May 19, 2016, a jury found

Appellant guilty of the offense. This appeal followed imposition of a five-to-

ten year term of imprisonment. Appellant raises these averments:

        I.   Whether the trial court erred in denying Appellant's
             request for a continuance to obtain new counsel thereby
             requiring him to proceed pro se without a proper waiver.

       II.   Whether the trial court erred in not hearing Appellant's
             motion for nominal bail until after the jury trial and
             sentencing was complete.

Appellant’s brief at 4.

      On appeal, Appellant first complains that the trial court forced him to

relinquish his constitutional right to counsel by allowing court-appointed

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counsel to withdraw after a jury was selected, denying Appellant’s ensuing

requests for a continuance and appointment of another lawyer, and then

forcing him to proceed pro se without dissemination of a Pa.R.Crim.P. 121

waiver-of-counsel colloquy.1 We agree with this position and grant Appellant

a new trial.

____________________________________________


1
    Pa.R.Crim.P. 121 states:

        (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

(Footnote Continued Next Page)


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      The pertinent facts follow.            The first docket entry is a notice of

acceptance and request for transfer of this case to special and conflicts

office. Assistant Public Defender Michael D. Suders, Esquire, certified that

Appellant qualified for a public defender, but the office had a conflict

because it was         representing a key witness in another case filed against

Appellant, criminal action number 1360 of 2014, which involved one count of

endangering the welfare of a child.

      In the present case, Kathleen Lincoln, Esquire, was appointed as

conflicts counsel.      She represented Appellant throughout this matter.      On

October 5, 2014, Appellant entered a guilty plea, which he was allowed to

withdraw at sentencing due to a discrepancy between the standard guideline

ranges outlined at the guilty plea and the actual standard guideline range

applicable based upon information in Appellant’s presentence report.

       Appellant leveled no complaints about Attorney Lincoln and never

requested another lawyer prior to trial. After the jury was selected, Attorney

                       _______________________
(Footnote Continued)

             (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.




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Lincoln asked the court to recuse itself. That request was denied. She then

stated that Appellant told her that, if the recusal request was denied,

Appellant wanted another lawyer to be appointed.               Rather than deny the

motion for new counsel and require Attorney Lincoln to continue to represent

Appellant, which was the proper action herein, the trial court ordered

Appellant to proceed pro se. The court directed Attorney Lincoln to act as

standby counsel, and the matter proceeded to trial.

      In its Rule 1925(a) opinion, the trial court ruled that Appellant had

forfeited   his    right   to   counsel.     It   analogized    to     our    holding   in

Commonwealth v. Kelly, 5 A.3d 370 (Pa.Super. 2010), and determined

that Appellant had forfeited his right to counsel “with his unreasonable

demand on the morning of his trial; his express dissatisfaction with his third

counsel and any potential appointed attorney available in the county.”

Opinion, 10/19/16, at unnumbered 4.               The court highlighted Appellant’s

desire to retain Attorney Lincoln as counsel in his related trial as evidence

that his position was unreasonable. Id.

      In Commonwealth v. Lucarelli, 971 A.3d 1173 (Pa. 2009), our High

Court drew a clear distinction between waiver of counsel and forfeiture of

counsel.      It   noted    that   “waiver   is    ‘an   intentional    and    voluntary

relinquishment of a known right.’”                Id. at 1179 (citation omitted).

Forfeiture, on the other hand, “does not require that the defendant intend to

relinquish a right, but rather may be the result of the defendant’s ‘extremely

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serious misconduct’ or ‘extremely dilatory conduct.’” Id. (citation omitted).

Of import here, the Supreme Court held that Rule 121, and its colloquy

requirement, do not apply to forfeiture of the right to counsel.

      With this framework in place, we examine the trial court’s reliance on

Kelly, supra. In Kelly, the defendant, Kelly, filed a motion to withdraw a

guilty plea that he entered only after the trial court granted a motion by trial

counsel to withdraw on the eve of trial.     This Court found that Kelly had

forfeited his right to counsel, and thus, concluded that his guilty plea was

knowingly, voluntarily, and intentionally tendered. In finding that Kelly had

forfeited his right to counsel, we emphasized the following:

      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 interest 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.




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Kelly,      supra   at   381-382.       Based     on    these   circumstances,   which

demonstrate extremely dilatory conduct by Kelly, we found that he had

intentionally forfeited his right to counsel.

      The forfeiture of one’s right to counsel is a severe sanction, which

should be reserved only for outrageous conduct.                  Since we find that

Appellant’s behavior did not rise to the level of “extremely serious

misconduct” or “extremely dilatory conduct,” Lucarelli, supra, we find that

the trial court erred in determining that Kelly controls the disposition of this

matter.

      Instantly, Appellant was, in effect, only represented by one attorney.

Although the court appointed the public defender’s office to represent him,

the public defender withdrew its representation, having found a conflict of

interest.     Attorney Lincoln, in her capacity as conflict counsel, was

appointed, and remained Appellant’s attorney except for a brief interruption,

at no fault of Appellant, when she left the office on conflict counsel.

Nevertheless, she continued representing Appellant. Thus, Attorney Lincoln

was the only lawyer able to act on Appellant’s behalf, conflict free, for the

duration of this matter.

      Moreover, unlike the defendant in Kelly, Appellant’s pre-trial conduct

did   not     evince     a   pattern   of   failure    to   cooperate   with   counsel.

Notwithstanding that Attorney Lincoln ultimately cited a “breakdown in

communication,” and “irreconcilable difference,” as motivating her desire to

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withdraw from representation, see N.T. Trial, 5/19/16, at 6-7, the record

does not indicate that Appellant was overtly uncooperative.           In fact,

Appellant requested that Attorney Lincoln remain his counsel of record in his

related criminal proceeding.

      Further, the court did not warn Appellant that his behavior would

result in a forfeiture of his right to counsel and that he would be forced to

represent himself pro se at trial.    Indeed, Appellant requested counsel be

appointed for the purposes of trial, and presumably, expected that he would

be represented by counsel at all times. He did not request to proceed pro se

at any point before trial.     We acknowledge that Appellant’s request for a

continuance immediately prior to trial hindered the efficient administration of

justice, but his conduct was not so extreme as to justify the forfeiture of his

right to counsel.   Compare Commonwealth v. Thomas, 879 A.2d 246

(Pa.Super. 2005) (finding defendant forfeited right to counsel through

pattern of misconduct, abuse, threats, and failure to collaborate in own

defense with five separate attorneys); Commonwealth v. Coleman, 905

A.2d 1003 (Pa.Super. 2006) (affirming a finding of forfeiture where

defendant had means to obtain counsel, yet continually appeared without

counsel after dismissing them or engaging in conduct forcing them to

withdraw); Lucarelli, supra (finding defendant forfeited right to counsel

after he engaged in extremely dilatory conduct, had means to obtain

counsel, retained counsel on several occasions but caused attorneys to

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withdraw, was provided money by court to obtain counsel, and was still

unrepresented at trial).

       In light of the foregoing, we find Appellant’s trial was tainted. Since

Appellant did not engage in conduct vindicating the court’s decision to force

him to proceed pro se, the trial court had a duty to conduct the colloquy

required by Rule 121, and, as it failed to do so, we must correct this error.

See Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super. 2000), (this

Court reversed and remanded for appointment of counsel where defendant

had legal right to counsel during proceeding in question). Appellant must be

provided with counsel if he so desires, and, if he does not want a lawyer, he

must be given a full colloquy pursuant to Rule 121.2

       Judgment of sentence reversed.            Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2017
____________________________________________


2
   Additionally, we find that, due to Appellant’s subsequent conviction and
sentence at criminal action number 512 of 2015, his second issue is moot,
as he is bound to remain incarcerated throughout the duration of his new
trial.



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