J-S67027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    DAVID REID                                  :
                                                :
                       Appellant                :   No. 493 MDA 2019

          Appeal from the Judgment of Sentence Entered March 6, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000300-2018


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                       FILED: FEBRUARY 3, 2020

        Appellant, David Reid, appeals from the Judgment of Sentence entered

by the Dauphin County Court of Common Pleas after he pleaded guilty to three

counts of Manufacture, Delivery, or Possession with Intent to Manufacture or

Deliver; two counts of Criminal Use of Communication Facility; and one count

of Use or Possession of Drug Paraphernalia.1 After careful review, we conclude

that the trial court committed reversible error by failing to comply with

Pa.R.Crim.P. 121, pertaining to the waiver of trial counsel. Therefore, we

vacate Appellant’s Judgment of Sentence and remand for a new trial.2
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 7512(a); and 35 P.S. § 780-
113(a)(32), respectively.

2 On December 17, 2019, Appellant filed an Application for Leave to File a
Supplemental Brief and attached the Supplemental Brief. We, hereby, grant
the Application and accept the Supplemental Brief as filed.
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        On January 23, 2018, Appellant was charged with the above crimes. On

September 13, 2018, Appellant appeared before the court pro se and

requested a continuance. He explained that he had two attorneys, but he

believed they were incompetent and informed the court that he was trying to

obtain another attorney. The court granted him a continuance.

        On November 15, 2018, Appellant again appeared before the court pro

se. The Commonwealth informed the court that Appellant had had three

different attorneys. The court did not conduct a Grazier3 hearing. The court

then scheduled the case for trial.

        On March 6, 2019,4 Appellant appeared pro se with Assistant Public

Defender Christopher Amthor, Esq., as standby counsel and entered an open

guilty plea to the above crimes after the following exchange:

        THE COURT: . . . You’re also representing yourself here today. Mr.
        Amthor is just here as standby. And you chose to do that, correct,
        to represent yourself?

        THE DEFENDANT: Yes.

        THE COURT: I believe you did have previous counsel.

        THE DEFENDANT: Yes.

        THE COURT: Can you not afford an attorney?

        THE DEFENDANT: Well, I can now. Income tax time is here now,
        so --

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3   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
4   The court continued the trial in January 2019 and February 2019.


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       THE COURT: Understood. But you understand that the plea
       negotiation that the Commonwealth is offering you is in your best
       interest?

       THE DEFENDANT: I pray to God it is.

       THE COURT: All right. So you’re waiving your right to a jury trial?

       THE DEFENDANT: Yes, ma’am.

       THE COURT: And you’re waiving the rights to have counsel present
       with you and represent yourself?

       THE DEFENDANT: If I did get counsel, would I be --

       THE COURT: It’s going to be the same outcome.

       THE DEFENDANT: Same thing.

       THE COURT: Well, I don’t know. Their offer may change, I don’t
       know. That’s up to the Commonwealth.

       THE DEFENDANT: Yeah, you’re right. I’m here. I’m here.

       THE COURT: I have nothing to do with that.

       THE DEFENDANT: I’m here.

N.T. Plea Hearing, 3/6/19, at 4-5.

       On the same date, the court sentenced Appellant to an aggregate term

of one to three years of imprisonment.

       Appellant filed a timely pro se appeal.5 The court ordered Appellant to

file a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.

Appellant complied. On May 7, 2019, the court held a Grazier hearing and
____________________________________________


5 While his appeal was pending, Appellant filed a Post-Sentence Motion
requesting to withdraw his guilty plea. The court denied it for lack of
jurisdiction.


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subsequently appointed the Dauphin County Public Defender’s Office as

appellate counsel. Appointed counsel filed an additional Rule 1925(b)

Statement. After two additional Grazier hearings, Appellant informed the

court that he wished to proceed pro se and filed another pro se Rule 1925(b)

Concise Statement of Matters Complained of on Appeal on June 3, 2019. The

trial court filed a Rule 1925(a) Opinion, addressing only the issues raised in

Appellant’s pro se 1925(b) Statements.

      Appellant raises four issues for our review. The first issue challenges

whether he knowingly, voluntarily, and intelligently waived his right to be

represented by counsel prior to entering his guilty plea. Appellant’s Br. at 4.

In response, the Commonwealth contends that Appellant waived the issue on

appeal. Appellee’s Br. at 4.

      Generally, “[w]here the parties fail to preserve an issue for appeal, the

Superior Court may not address that issue sua sponte.” Commonwealth v.

Johnson, 158 A.3d 117, 121 (Pa. Super. 2017). However, “failure to raise an

issue in a criminal proceeding does not constitute a waiver where the

defendant is not represented by counsel in the proceeding.” Id. (quoting

Commonwealth v. Monica, 597 A.2d 600, 603 (Pa. 1991)). Where a

defendant was denied his right to counsel or failed to properly waive that right,

this Court is required to raise this error sua sponte and remand for the trial

court to correct that mistake. Commonwealth v. Murphy, 214 A.3d 675,

678 (Pa. Super. 2019); Johnson, 158 A.3d at 121 (quoting Commonwealth

v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011)).

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     Here, there is no dispute that Appellant acted pro se during his guilty

plea hearing. Therefore, we need not address whether Appellant waived the

claim that his waiver to counsel was not knowing, intelligent, and voluntary.

Instead, we must sua sponte address whether Appellant knowingly,

voluntarily and intelligently waived his right to counsel. See Johnson, supra

at 121.

     The right to counsel and the corresponding right to self-representation

are guaranteed by the Sixth Amendment to the United States Constitution and

Article I, Section Nine of the Pennsylvania Constitution. Commonwealth v.

Payson, 723 A.2d 695, 699 (Pa. Super. 199). As our Supreme Court has

made clear:

     [i]t is . . . firmly established that an accused has a constitutional
     right to counsel during trial. While an accused may waive his
     constitutional right, such a waiver must be the free and
     unconstrained choice of its maker, and also must be made
     knowingly and intelligently. To be a knowing and intelligent waiver
     defendant must be aware of both the right and of the risks of
     forfeiting that right.

Commonwealth v. Tyler, 360 A.2d 617, 620 (Pa. 1976) (citations and

quotation marks omitted); Payson, supra at 700. Deprivation of the right to

counsel, or the right to waive counsel, can never be harmless. Payson, 723

at 699–700. Moreover,

     the presumption must always be against the waiver of a
     constitutional right. Nor can waiver be presumed where the
     record is silent. The record must show, or there must be an
     allegation and evidence which shows, that an accused was offered
     counsel but intelligently and understandingly rejected the offer.
     Anything less is not waiver. . . . [T]his court is constitutionally

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      bound to place       the   burden   of   proving   waiver   on    the
      Commonwealth.

Commonwealth v. Monica, 597 A.2d 600, 603 (Pa. 1991) (emphasis

removed).

      When a defendant seeks to waive the right to counsel, the trial court

must conduct on the record a full and complete waiver colloquy to determine

whether the defendant’s waiver is knowing, voluntary, and intelligent.

Commonwealth v. Brazil, 701 A.2d 216, 219 (Pa. 1997). See Johnson,

supra at 121 (stating that the court must conduct a “thorough inquiry into

the accused’s appreciation of both [the right to counsel and the right to

represent oneself] . . . at trial, guilty plea hearings, sentencing, and every

‘critical stage’ of a criminal proceeding.”) (citation omitted). The appointment

of standby counsel does not alter this requirement. Brazil, supra at 219.

      Pennsylvania Rule of Criminal Procedure 121 outlines the requirements

for a valid waiver-of-counsel colloquy. It states, in pertinent part:

      [T]he judge or issuing authority, at a minimum, shall elicit the
      following information from the defendant:

            (a) that the defendant understands that he . . . 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;


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            (d) that the defendant understands that if he . . .
            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). A court’s failure to conduct a valid colloquy before

allowing a defendant to proceed pro se constitutes reversible error. Murphy,

supra at 678; Johnson, supra at 122.

      The on-the-record colloquy regarding Appellant’s waiver of his right of

counsel falls woefully short of the requirements set forth in Rule 121. The

court failed to elicit from Appellant, inter alia, whether he understood his right

to counsel and the inherent risks in forfeiting that right. See Tyler, supra at

620; Payson, supra at 700; Pa.R.Crim.P. 121(A)(2). We, therefore, conclude

that the trial court committed reversible error by allowing Appellant to proceed

pro se without first conducting a valid on-the-record colloquy to determine

whether his waiver of counsel was knowing, voluntary, and intelligent.

      Accordingly, we vacate Appellant's judgment of sentence and remand

for the appointment of counsel, or a full waiver colloquy, and a new

trial. See Payson, supra at 703 (vacating and remanding for a new trial


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where trial court failed to conduct valid waiver of counsel colloquy prior to

defendant’s guilty plea).6

       Judgment of sentence vacated. Case remanded for new trial. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/03/2020




____________________________________________


6 Because this issue is dispositive, we need not address Appellant’s remaining
issues he raised in this appeal.

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