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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PHILOME CESAR, : No. 1718 EDA 2015
:
Appellant :
Appeal from the PCRA Order, May 12, 2015,
in the Court of Common Pleas of Lehigh County
Criminal Division at Nos. CP-39-CR-0005299-2010,
CP-39-CR-0005301-2010, CP-39-CR-0005302-2010
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 20, 2016
Philome Cesar appeals from the order of May 12, 2015, denying his
PCRA1 petition. We affirm.
Following a jury trial, appellant was found guilty of 19 counts of
robbery and 1 count of providing false identification to law enforcement.
Appellant was sentenced to an aggregate of 95 to 190 years’ incarceration.
On direct appeal, this court summarized the history of this matter as follows:
A jury convicted [appellant] of committing nineteen
separate armed robberies of Lehigh County
convenience stores, hotels, and other commercial
establishments. [Appellant] displayed a firearm,
threatening and terrorizing the victims with it during
the crimes. After a months-long robbery spree,
[appellant] was ultimately apprehended and
discovered to be in possession of items stolen from
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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several victims, as well as clothing matching the
description of that worn by the perpetrator of these
numerous offenses. Other physical evidence directly
tied [appellant] to several of the robberies, and as all
of the crimes had a similar modus operandi, the
jury found [appellant] guilty of committing all
nineteen robberies. [Appellant]’s conviction of
providing false identification to law enforcement was
based on his giving officers a false name at the time
of his arrest.
The sentencing court reviewed a presentence
report and, on December 20, 2011, the court held a
sentencing hearing. Following the hearing, the court
sentenced [appellant] to a mandatory term of five to
ten years’ incarceration for each of his nineteen
robbery convictions, for an aggregate term of 95 to
190 years’ imprisonment. The court imposed the
mandatory sentence because during each offense,
[appellant] brandished a firearm, placing his victims
in fear of death or serious bodily injury. See
42 Pa.C.S. § 9712(a). [Appellant] filed a timely
notice of appeal, as well as a timely concise
statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b).[Footnote 1]
[Footnote 1] We note that during his trial
and sentencing hearing, [appellant]
chose to represent himself with the
assistance of court-appointed standby
counsel. However, following the
imposition of his sentence, [appellant]
moved for appointment of counsel to
represent him on appeal, which the court
granted. Accordingly, [appellant] is
represented by counsel in this appeal.
Commonwealth v. Cesar, 75 A.3d 564, 2013 WL 11267500 at *1
(Pa.Super. 2013) (unpublished memorandum), appeal denied, 77 A.3d 635
(Pa. 2013).
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On April 25, 2013, a divided panel of this court affirmed the judgment
of sentence; and on October 10, 2013, our supreme court denied appellant’s
petition for allowance of appeal.2 Id. This timely petition for post-conviction
collateral relief was filed on July 25, 2014. Counsel was appointed and filed
an amended petition on appellant’s behalf on December 11, 2014. Therein,
appellant raised two issues: 1) that the 5 to 10-year mandatory minimum
sentences imposed pursuant to 42 Pa.C.S.A. § 9712(a) were
unconstitutional in light of Alleyne v. United States, U.S. , 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Commonwealth v. Newman, 99
A.3d 86 (Pa.Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.
2015); and 2) that appellant’s waiver of counsel colloquy was inadequate.
Following an evidentiary hearing held on April 17, 2015, at which appellant
and trial counsel, Richard Webster, Esq., testified, the PCRA court granted
2
On direct appeal, among other issues, appellant challenged the
discretionary aspects of sentencing, alleging that the consecutive nature of
his sentences resulted in a manifestly excessive aggregate term of
imprisonment in light of his individual circumstances. Judge Lazarus, in a
memorandum decision joined by Judge Colville, affirmed, finding that the
sentence imposed was not “clearly unreasonable” within the meaning of
42 Pa.C.S.A. § 9781(d) and reflected the sentencing court’s meaningful
consideration of the facts of the crimes and appellant’s character, including
that appellant terrorized nineteen victims and an entire community for a
whole summer. Id. at *6-7. President Judge Emeritus Bender filed a
dissenting memorandum, opining that appellant’s sentence was
“clearly unreasonable” within the meaning of the Sentencing Code where it
amounted to a life sentence and appellant did not inflict any physical harm
on any of the victims. Id. at *24. Judge Bender also concluded that the
sentencing court failed to consider appellant’s history, personal
characteristics, and need for rehabilitation. Id.
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the petition in part, and denied it in part. The PCRA court granted appellant
a new sentencing hearing pursuant to Alleyne; however, the court denied
appellant a new trial on appellant’s claim that his waiver of trial counsel
colloquy was inadequate. To the contrary, the PCRA court found that the
oral waiver colloquy, together with the written waiver of counsel form,
clearly established the voluntary, knowing, and intelligent nature of the
relinquishment of appellant’s right to be represented by counsel. (Opinion
and Order, 5/12/15 at 7.) The PCRA court determined that appellant’s
testimony at the PCRA hearing was not credible and that appellant realized
after the guilty verdict that, in hindsight, his decision to represent himself
was not in his best interest. (Id. at 7-8 n.4.) This timely appeal followed.3
Appellant has raised the following issue for this court’s review:
“Whether the court erred in finding waiver of counsel was knowing,
voluntary and intelligently made where [appellant] was not apprised of his
ability to rescind the waiver and request representation by counsel?”
(Appellant’s brief at 6.)
Initially, we note our standard of review:
Our standard of review of a PCRA court’s dismissal of
a PCRA petition is limited to examining whether the
PCRA court’s determination is supported by the
evidence of record and free of legal error.
Commonwealth v. Ceo, 812 A.2d 1263, 1265
3
On June 12, 2015, appellant was resentenced to an aggregate of 95 to
190 years’ imprisonment. Appellant filed a separate appeal from the
June 12, 2015 judgment of sentence at No. 1853 EDA 2015. However, no
issue is being raised as to resentencing.
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(Pa.Super.2002) (citation omitted). Great deference
is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have
no support in the certified record. Commonwealth
v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001)
(citation omitted).
Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super. 2003)
(en banc), appeal denied, 839 A.2d 352 (Pa. 2003).
To be entitled to PCRA relief, a petitioner must
establish, by a preponderance of the evidence, his
conviction or sentence resulted from one or more of
the errors found in 42 Pa.C.S. § 9543(a)(2), his
claims have not been previously litigated or waived,
id., § 9543(a)(3), and “the failure to litigate the
issue prior to or during trial, during unitary review or
on direct appeal could not have been the result of
any rational, strategic or tactical decision by
counsel.” Id., § 9543(a)(4). An issue is previously
litigated if “the highest appellate court in which the
petitioner could have had review as a matter of right
has ruled on the merits of the issue . . . .” Id.,
§ 9544(a)(2). An issue is waived “if the petitioner
could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal, or in a prior
state postconviction proceeding.” Id., § 9544(b).
Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 2012). It is well
established that ordinary claims of trial court error are waived on PCRA
review, unless they are properly layered in terms of counsel ineffectiveness.
Commonwealth v. Williams, 950 A.2d 294, 308 (Pa. 2008);
Commonwealth v. Reyes, 870 A.2d 888, 895-896 (Pa. 2005).
Appellant argues that the trial court failed to conduct a complete
waiver of counsel colloquy as required by Pa.R.Crim.P. 121 where he was
never informed of his right to rescind the waiver and request stand-by
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counsel to take over. According to appellant, he mistakenly believed that
once trial had begun, he had to continue pro se and could not request
assistance of counsel. (Appellant’s brief at 19-20.)
The right to counsel in a criminal proceeding is a
fundamental right guaranteed by the Sixth
Amendment of the United States Constitution and
Article One, Section Nine of the Pennsylvania
Constitution. Faretta v. California, 422 U.S. 806,
95 S.Ct. 2525, 45 L.Ed.2d 562 (1975);
Commonwealth v. Szuchon, 506 Pa. 228, 484
A.2d 1365 (1984). A defendant may, however,
waive this fundamental right and proceed with his
defense pro se. Faretta, 422 U.S. at 835, 95 S.Ct.
2525; Szuchon, 484 A.2d at 1377. If a defendant
desires to do so, he must petition the court and the
court must follow the appropriate legal procedure for
securing a valid waiver of counsel.
Commonwealth v. McDonough, 812 A.2d 504, 506 (Pa. 2002).
Rule 121 of the Pennsylvania Rules of Criminal
Procedure governs waiver of counsel proceedings
and states in relevant part, “When a defendant seeks
to waive the right to counsel after the preliminary
hearing, the judge shall ascertain from the
defendant, on the record, whether there is a
knowing, voluntary, and intelligent waiver of
counsel.” Pa.R.Crim.P. 121(c). To ensure that a
waiver of counsel is knowing, voluntary, and
intelligent, the following information must be elicited
from the defendant: (1) whether the defendant
understands that he has a right to be represented by
counsel and the right to free counsel if he is indigent,
(2) whether the defendant understands the nature of
the charges against him and the elements of each of
those charges, (3) whether the defendant is aware of
the permissible range of sentences and/or fines for
the offenses charged, (4) whether the defendant
understands that if he waives the right to counsel he
will still be bound by all the normal rules of
procedure and that counsel would be familiar with
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these rules, (5) whether the defendant understands
that there are possible defenses to these charges to
which counsel might be aware, and if these defenses
are not raised they may be lost permanently, and
(6) whether the defendant understands that, in
addition to defenses, the defendant has other rights
that, if not timely asserted, may be lost permanently
and that if errors occur and are not objected to or
otherwise timely raised by the defendant, the
objection to these errors may be lost permanently.
See Commonwealth v. Starr, 541 Pa. 564, 664
A.2d 1326, 1335 (1995); Pa.R.Crim.P. 121 cmt.
McDonough, 812 A.2d at 506-507 (footnote omitted).
We agree with the Commonwealth that this issue is waived. Appellant
did not raise this issue on direct appeal, nor has he alleged ineffective
assistance of direct appeal counsel for failing to raise the issue. Whether the
trial court erred by allegedly failing to conduct a thorough waiver of counsel
colloquy in compliance with Pa.R.Crim.P. 121 was cognizable on direct
appeal. Therefore, the issue is waived. 42 Pa.C.S.A. § 9544(b).
Furthermore, the record belies appellant’s contention. The trial court
conducted a thorough and complete waiver of counsel colloquy, addressing
each of the six areas required by Pa.R.Crim.P. 121. (Notes of testimony,
11/14/11 at 3-10.) Appellant also signed a written waiver form. (Id. at
10.) Appellant has cited no authority for the proposition that the trial court
was required to specifically advise him that he could rescind his decision to
waive counsel at any time and ask standby counsel to take over. However,
as the trial court observes, appellant’s argument in this regard is
undermined by the fact that after appellant waived counsel, he asked
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Attorney Webster to litigate his pre-trial motions including a
Pa.R.Crim.P. 600 speedy trial motion and a motion in limine to exclude
shoeprint evidence. (Id. at 18-28.) Appellant’s testimony at the PCRA
evidentiary hearing that he was unaware he could withdraw his waiver of
counsel and proceed with standby counsel during trial was found not to be
credible by the PCRA court. The record indicates that appellant knowingly,
voluntarily, and intelligently decided to waive counsel and proceed pro se.
He was simply dissatisfied with the result. Therefore, even if this matter
were not waived on PCRA review, which it is, we would find it to be without
merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2016
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Com. v. Cesar, P.
Combined Opinion