J-S50039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BERNARD HILL, JR.
Appellant No. 2949 EDA 2014
Appeal from the Judgment of Sentence September 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015274-2012
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 28, 2015
A jury found Bernard Hill guilty of burglary and criminal trespass1 but
acquitted him of possession of an instrument of crime. The trial court
sentenced Hill to 7-14 years’ imprisonment for burglary and a consecutive
term of five years’ probation for criminal trespass. Hill filed a timely direct
appeal, and both Hill and the trial court complied with Pa.R.A.P. 1925. We
vacate Hill’s judgment of sentence and remand for a new trial, because the
trial court permitted Hill to proceed pro se during jury selection without
waiving his right to counsel knowingly, voluntarily, or intelligently.
On July 26, 2012, Hill jumped over a fence to gain entrance to the
back patio of a home in Philadelphia, broke a kitchen window and removed
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1
18 Pa.C.S. §§ 3502 and 3503, respectively.
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several items from the windowsill. An au pair who was caring for two young
children saw Hill removing the items; Hill saw the au pair and ran away. The
au pair called police, who apprehended Hill several minutes later running
down a nearby street, wearing exactly what the au pair had described to
police and carrying a small pocket knife, gloves and a flashlight on his
person. The au pair identified Hill as the perpetrator minutes after his
arrest. N.T., 5/21/14, at 98-119, 144-52.
Richard Desipio, Esquire was appointed to represent Hill, and Mr.
DeSipio served as counsel during Hill’s preliminary hearing, pre-trial
conference and multiple pre-trial status listings.
On the day of trial, Hill indicated his dissatisfaction with Mr. Desipio’s
representation for the first time. Hill asked the trial court to appoint new
counsel because he had allegedly seen Mr. Desipio only two times after his
arrest and had not received discovery or notes of testimony from the
preliminary hearing. Mr. Desipio disputed Hill’s assertions and stated that he
had given all discovery and the preliminary hearing transcript to Hill over
one year earlier. N.T., 5/20/14, at 4-5, 35-36, 38-39, 44-46. The trial court
credited Mr. Desipio’s response and denied Hill’s request to appoint new
counsel.
Hill stated that he would not permit Mr. Desipio to serve as trial
counsel under any circumstances and demanded to represent himself. He
also requested a continuance to prepare to present his own defense. The
trial court denied Hill’s request for continuance, noting that the trial date had
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received priority status because the Commonwealth’s sole witness (the au
pair) had moved to France and had flown in for trial. N.T., 5/20/14, at 16-
17.
The trial court colloquied Hill to determine whether his decision to
waive his right to counsel was knowing, voluntary and intelligent. Although
the colloquy was extensive, the Commonwealth admits that the court did not
inquire whether Hill understood (1) that he had the right to have counsel
appointed for him at no cost to him, (2) the elements of the crimes, (3) the
permissible fine for burglary, and (4) that counsel might be aware of
defenses that would be lost if they were not raised at trial. Brief For
Commonwealth, at 15-16. The court accepted Hill’s waiver of his right to
counsel as knowing, voluntary and intelligent. Over Hill’s objection, the
court appointed Mr. Desipio as standby counsel and informed Hill that he
could speak with Mr. Desipio at any time during the proceedings. N.T.,
5/20/14, at 40-41.
The Commonwealth requested a jury trial. Hill, who wanted a waiver
trial, stated that he was “not going to disrupt” jury selection but would not
speak at all. N.T., 5/20/14, at 42-43. Hill did not speak during jury
selection, but the trial court proceeded with voir dire by asking questions on
the basis of the venirepersons’ responses to juror questionnaires. The court
struck venirepersons for cause when appropriate and asked Hill each time
whether he wished to accept each person questioned. When he did not
respond, the court deemed his silence as an implicit acceptance. Twelve
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jurors and two alternates were selected, all of whom affirmed that they
would be impartial.
Before trial began the next day, the Commonwealth and Mr. Desipio
jointly requested that the court revoke Hill’s right to represent himself on the
ground that his conduct made clear that he did not truly want to represent
himself but merely wanted to engage in gamesmanship to delay the
proceedings. N.T., 5/21/14, at 3-9. The court asked Hill whether he would
meaningfully participate in his own defense at trial, and he answered that he
would not because he “[did not] want a jury trial” and “[did not] want this
lawyer.” Id. at 12. The court thereupon revoked Hill’s right to represent
himself and re-appointed Mr. Desipio as counsel.
Ultimately, after two days of deliberations and four questions to the
court, the jury returned a guilty verdict on the burglary and criminal
trespass charges and a not guilty verdict on the charge of possession of an
instrument of crime.
Hill raises three issues on appeal, which we have re-ordered for the
sake of convenience:
Did the trial court err when it allowed [Hill] to waive his right to
counsel or when it denied his request for a continuance?
Did the trial court improperly deny [Hill’s] request for new
counsel?
Did the jury selection process violate [Hill’s] right to an impartial
jury trial or violate fundamental notions of due process?
Brief For Appellant, at 3.
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Hill’s first argument, which we find dispositive, is that the trial court
erred by permitting him to waive his right to counsel. A criminal defendant’s
right to counsel is guaranteed by the Sixth Amendment to the United States
Constitution and Article I, § 9 and Article V, § 9 of the Pennsylvania
Constitution. Commonwealth v. Owens, 750 A.2d 872, 875
(Pa.Super.2000). Alternatively, a criminal defendant has a well-settled
constitutional right to dispense with counsel and to defend himself before the
court. Commonwealth v. Starr, 664 A.2d 1326, 1334 (Pa.1995) (citing
Faretta v. California, 422 U.S. 806 (1975)). “Deprivation of these rights
can never be harmless.” Commonwealth v. Payson, 723 A.2d 695, 699–
700 (Pa.Super.1999). As our Supreme Court explained in Starr:
[T]his highly personal constitutional right operates to prevent a
state from bringing a person into its criminal courts and in those
courts force a lawyer upon him when he asserts his
constitutional right to conduct his own defense. Faretta, supra,
[422 U.S.] at 807. Further, the denial of a criminal defendant’s
right to proceed pro se is not subject to a harmless error
analysis. McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8 []
(1984) (‘the right to self-representation is either respected or
denied; its deprivation cannot be harmless’).
Starr, 664 A.2d at 1334–1335.
In the wake of Faretta, our Supreme Court promulgated Pa.R.Crim.P.
318, later renumbered as Pa.R.Crim.P. 121, to ensure that criminal
defendants intent upon waiving their right to counsel do so knowingly,
voluntarily and intelligently. Rule 121 requires the court to elicit the
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following information from the defendant to ensure that his waiver is
knowing, voluntary, and intelligent:
(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). When the court is satisfied that the defendant
understands each of these factors but knowingly, voluntarily, and
intelligently seeks to waive his right to counsel, the trial court, in keeping
with Faretta, must allow the individual to proceed pro se. Commonwealth
v. El, 977 A.2d 1158, 1162-63 (Pa.2009). Upon accepting the defendant’s
waiver of counsel, the court may appoint standby counsel for the defendant.
Pa.R.Crim.P. 121(D). Standby counsel “shall attend the proceedings and
shall be available to the defendant for consultation and advice.”
Pa.R.Crim.P. 121(D).
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“Regardless of the defendant’s prior experience with the justice
system, a penetrating and comprehensive colloquy is mandated.”
Commonwealth v. Owens, 750 A.2d 872, 876 (Pa.Super.2000). “Failure
to conduct a thorough on-the-record colloquy before allowing a defendant to
proceed to trial pro se constitutes reversible error.” Commonwealth v.
Phillips, 93 A.3d 847, 853 (Pa.Super.2014) (failure to conduct thorough
colloquy at multiple critical stages of proceedings required vacation of
judgment of sentence and remand for further proceedings);
Commonwealth v. Clyburn, 42 A.3d 296, 300-01 (Pa.Super.2012) (new
trial required for failure to conduct thorough on-the-record colloquy before
allowing defendant to proceed to trial pro se); Commonwealth v. Houtz,
856 A.2d 119 (Pa.Super.2004) (trial court did not fully comply with rule
requiring it to ascertain whether defendant’s waiver of her right to counsel
was knowing, voluntary, and intelligent, and thus new trial was required);
Commonwealth v. Payson, 723 A.2d 695, 701 (Pa.Super.1999) (“the law
is now clear that the trial judge must conduct the colloquy [required under
Rule 121] and in doing so must formally question the defendant on the six
listed areas”).
The defendant does not need to prove prejudice when he proceeds to
trial without a legally sufficient waiver of her constitutional right to counsel.
Clyburn, 42 A.3d at 302 n. 3 (citing Commonwealth v. Brazil, 701 A.2d
216 (Pa.1997) (granting new trial for defective waiver colloquy without
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analyzing whether the appellant suffered prejudice); Houtz, 856 A.2d at
130 (same); Payson, 723 A.2d at 704 (“[A]ny shortcoming relative to this
colloquy cannot be gauged to the quality of an accused’s self-representation
nor justified on the basis of his prior experience with the system”).
Moreover, as Clyburn observes, Pennsylvania cases which suggest that the
defendant needs to show prejudice arising from a defective waiver are
inapposite, because these cases had “different procedural postures”:
Both Commonwealth v. Meehan, 628 A.2d 1151, 1159
(Pa.Super.1993), and Commonwealth v. Davis, 573 A.2d
1101, 1108 n. 7 (Pa.Super.1990), were on appeal under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. The
cases of Commonwealth v. Bastone, 467 A.2d 1339, 1341
(Pa.Super.1983), and Commonwealth v. Carver, 436 A.2d
1209, 1211 (Pa.Super.1981), involved matters where counsel
was not present at the preliminary hearing stages.
Clyburn, 42 A.3d at 302 n.3 (citations modified).
The record demonstrates, and the Commonwealth concedes, that the
trial court erred by failing to question Hill about many of the six Rule 121
criteria before permitting him to represent himself, such as the elements of
the crimes, the permissible fine for burglary, the fact that he had the right to
have counsel appointed for him at no cost, and the possibility that counsel
knew about defenses that Hill would lose by not raising them at trial. These
omissions entitle Hill to a new trial.
The Commonwealth asserts that these omissions did not prejudice Hill,
because (1) he knew he had the right to appointment of counsel at no cost,
because he had free counsel for almost two years; (2) he knew the elements
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of the crimes, because he said he researched the charges at a law clinic; (3)
the outcome would have been the same had the court told him the
maximum fine for burglary and that counsel might know about defenses that
Hill would lose by not raising them during trial; (4) he only represented
himself pro se during jury selection but enjoyed counsel’s representation for
the rest of trial, (5) he would not have done anything differently during voir
dire had the court told him the omitted information, because his jury
selection strategy was simply to stand mute; (6) Mr. Desipio was present
during jury selection as standby counsel, seated behind Hill, and Hill knew
that he was free to speak to Mr. Desipio whenever he wanted; (7) the court
protected Hill during jury selection by posing questions to venirepersons and
striking several of them for cause; (8) the prosecutor used several
peremptory strikes and “thereby remov[ed] some venirepersons who may
have been biased against [Hill],” such as individuals who had been mugged
or robbed, an individual whose daughter had been robbed, and an individual
whose cousin was a police officer; (9) each juror that was selected affirmed
that he/she would be impartial; and (10) the jury demonstrated its
impartiality by carefully considering the evidence and rendering a verdict,
after two days of deliberations and four questions, of not guilty on one of the
charges. Brief For Commonwealth, at 17-20. This litany of arguments,
while incisive, does not change the result of this appeal. The Sixth
Amendment requires that the accused be given the assistance of counsel at
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every critical stage of a criminal prosecution. Commonwealth v. Ritchey,
245 A.2d 446, 448 (Pa.1968). Voir dire is a critical stage of the criminal
proceeding, because the defendant’s life or liberty might depend on jury
selection. Commonwealth v. Hunsberger, 58 A.3d, 32, 37 (Pa.2012).
Due to the defective Rule 121 colloquy, Hill lost his right to counsel during
this critical stage of the prosecution. While the Commonwealth argues
forcefully that Hill suffered no prejudice, our precedent does not require the
defendant to demonstrate prejudice arising from the loss of counsel during
trial, regardless of his prior experience with the system. Clyburn, 42 A.3d
at 302 n. 3.
The Commonwealth invites us to deny Hill a new trial because he lost
his right to counsel during a single critical stage of trial instead of the entire
trial. Acceptance of this argument would erode prior juridical
pronouncements on this subject and conflict with the clear language of Rule
121. We are unwilling to take this step. The loss of counsel during a single
critical stage is sufficient to warrant a new trial.2
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
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2
Due to our disposition of this issue, we need not address Hill's remaining
issues in this appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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