Com. v. Brisco, D.

J-S23024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DANIEL BRISCO

Appellant No. 2252 EDA 2015

Appeal from the PCRA Order June 29, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002316-2011

BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: FILED AUGUST 15, 2016

Daniel Brisco appeals from the order entered on June 29, 2015, in the

Court of Common Pleas of Monroe County, denying him relief on his petition

filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et

seq. In this timely appeal, Brisco raises one issue; he claims the PCRA court

erred in determining appellate counsel was not ineffective in failing to

challenge a defective waiver of counsel colloquy prior to Brisco’s trial. After

a thorough review of the submissions by the parties, relevant law, and the

certified record, we believe that Brisco has raised a colorable claim and

remand for an evidentiary hearing to allow for the determination of why

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*
Former Justice specially assigned to the Superior Court.
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appellate counsel, William P. Marshall, Esquire, did not challenge the

defective waiver of counsel colloquy.

The underlying facts of the criminal charges against Brisco are not

relevant to the disposition of this appeal. Accordingly, we simply note that

on June 16, 2011, Brisco was charged with terroristic threats, stalking,

harassment and criminal use of a communication facility1 regarding actions

he took against his estranged wife. On July 9, 2012, he was found guilty by

a jury and was ultimately sentenced to 40 to 120 months’ incarceration. A

direct appeal afforded Brisco no relief.2 Relevant to this PCRA appeal, prior

to trial, Brisco came to believe his appointed counsel, a member of the

Monroe County Public Defender’s office, was not acting in Brisco’s best

interests.3 On July 2, 2012, a colloquy was held in open court to determine

whether Brisco’s request to represent himself was knowing, intelligent, and

voluntary.

The rules for conducting a colloquy regarding waiver of counsel are

well settled.

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1
18 Pa.C.S. §§ 2706(a)(1), 2709.1(a)(2), 2709(a)(4), and 7512(a),
respectively.
2
See Commonwealth v. Brisco, 2922 EDA 2012 (unpublished
memorandum) (filed May 1, 2014).
3
Specifically, Brisco believed counsel had failed to file several motions on
his behalf, including a request for bail reduction, and a claim of a
Pa.R.Crim.P. 600 speedy trial violation.

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Our Supreme Court mandates a “probing colloquy” to determine
whether the defendant's waiver is knowing, voluntary and
intelligent. [Commonwealth v.] Starr, [541 Pa. 564] at 581,
664 A.2d [1236] at 1335. The court must also inquire whether:

(1) the defendant understands that he has the right to be
represented by counsel, and the right to have free counsel
if he is indigent; (2) the defendant understands the nature
of the charges against him and the elements of each of
those charges; (3) the defendant is aware of the
permissible range of sentences and/or fines for the
offenses charged; (4) 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 these rules; (5) defendant understands that
there are possible defenses to these charges which counsel
might be aware of, and if these defenses are not raised at
trial, they may be lost permanently; and (6) 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,
the objection to these errors may be lost permanently.

Starr, 541 Pa. at 582, 664 A.2d at 1335. In addition, it is
“incumbent on the court to fully advise the accused [of the
nature and elements of the crime] before accepting waiver of
counsel.” Commonwealth ex rel. Clinger v. Russell, 206 Pa.
Super. 436, 213 A.2d 100, 102 (1965).

We have long stated that “a signed statement alone cannot
establish that a defendant has effectively waived this right.”
Russell, 213 A.2d at 101. We further clarified the requirement
for an appropriate oral colloquy to accompany a written waiver
with the following:

One must bear in mind that an accused will often sign such
a prepared statement at a time when he is subject to the
conflicting pressures inherent in all accusatory
proceedings. In the absence of sufficient oral inquiry, such
a signed statement will not adequately demonstrate that
the accused comprehended and assented to the contents
of the writing. The court must examine the accused's

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awareness of the nature of the crime, the range of
allowable punishments thereunder, and all other facts
essential to a broad understanding of the whole matter.
Only at the completion of such a comprehensive inquiry,
can the court be confident that the defendant intelligently
waived his right to counsel.
Russell, 213 A.2d at 101.

Commonwealth v. Clyburn, 42 A.3d 296 (Pa. Super. 2012) (footnote

omitted).

In Russell, supra, the signed statement stated, in relevant part, “I

further certify that I understand the nature of the charge and the maximum

penalty which may be imposed.” Russell, 213 A.2d at 101.

Here, the relevant portion of the colloquy, in toto, was:

The Court: Okay. [Regarding knowledge of right to counsel] Do
you understand the nature of the charges that have been filed
against you and the elements of each of those charges?

Brisco: Yes.

N.T. Colloquy, 7/2/2012, at 2. The trial court then asked Brisco to list the

charges he faced, which he did.

In Russell, it was patently inadequate to accept, in writing, the simple

statement that the defendant knew the nature of the charges against him.

There is no fundamental difference between signing a generic statement

certifying an awareness of the nature of the charges one faces, and an

equally generic oral inquiry. In both instances, there is no demonstration

that the accused has the actual understanding of the nature of the charges

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sufficient to inspire the confidence that the defendant has intelligently

waived the right to counsel.

Although the trial court clearly demonstrated concern for Brisco and

his decision to represent himself, because the colloquy at issue did not

inform Brisco of the elements of the crimes he faced nor insured his

understanding thereof, we must agree that Brisco’s claim the colloquy was

legally deficient has arguable merit.4 However, that determination does not

end our inquiry.

We review ineffective assistance of counsel claims under the
following standard:

We begin with the presumption that counsel rendered
effective assistance. To obtain relief on a claim of
ineffective assistance of counsel, a petitioner must rebut
that presumption and demonstrate that counsel's
performance was deficient, and that such performance
prejudiced him. Strickland v. Washington, 466 U.S.
668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In
our Commonwealth, we have rearticulated the Strickland
Court's performance and prejudice inquiry as a three-
prong test. Specifically, a petitioner must show: (1) the
underlying claim is of arguable merit; (2) no reasonable
basis existed for counsel's action or inaction; and (3)
counsel's error caused prejudice such that there is a
reasonable probability that the result of the proceeding
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4
We are aware that on direct appeal, a prior panel of our Court commented,
“A hearing was held and following an extensive colloquy, the court
determined that appellant’s waiver of his right to counsel was knowing,
intelligent, and voluntary.” Commonwealth v. Brisco, 2922 EDA 2012
(unpublished memorandum) (filed 5/1/2014). The waiver of counsel
colloquy was not at issue in the direct appeal, and this statement is merely
part of the procedural history of the direct appeal.

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would have been different absent such error.
Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527
A.2d 973, 975 (1987).
Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 301
(2011) (some internal citations omitted). “A claim of
ineffectiveness will be denied if the defendant's evidence fails to
meet any one of these prongs.” Commonwealth v. Hanible,
612 Pa. 183, 30 A.3d 426, 439 (2011).

Commonwealth v. Oliver, 128 A.3d 1275, 1824 (Pa. Super. 2015).

Here, the PCRA court determined that Brisco suffered no prejudice

because he failed to show that but for counsel’s ineffective assistance he

would have accepted appointed counsel’s representation. Specifically, the

PCRA court opined, “…if the colloquy is deemed deficient, the record belies

any suggestion that [Brisco] would not have waived his right to counsel but

for Trial Counsel’s failure to object to the colloquy.” PCRA Court Opinion,

8/14/2015, at 24. The PCRA court bases this determination of lack of

prejudice on Commonwealth v Spotz, 18 A.3d 244, 263 (Pa. 2011). See

PCRA Court Opinion, at 22. However, Brisco is arguing that appellate

counsel was ineffective for failing to raise the claim on direct appeal.5 This

distinction requires us to ask a different question regarding prejudice.

____________________________________________

5
This claim was properly raised in Brisco’s Amended PCRA petition, which
was filed on September 25, 2014, at ¶ 6(d).

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To elaborate, case law has provided divergent standards for

determining whether a petitioner has demonstrated prejudice. 6 As noted,

the PCRA court used the commonly referred to Spotz7 standard, which

examines ineffective assistance of trial counsel for failing to object

contemporaneously to the defective colloquy. The Spotz decision noted:

Although our rules set forth specific requirements for a waiver
colloquy, we have been careful to distinguish between a colloquy
and the right that it was designed to protect, as follows:

A waiver colloquy is a procedural device; it is not a
constitutional end or a constitutional “right.”.... [A]n on-
the-record colloquy is a useful procedural tool whenever
the waiver of any significant right is at issue, constitutional
or otherwise, e.g., waiver of a trial, waiver of the right to
counsel, waiver of the right to call witnesses, waiver of the
right to cross-examine witnesses, waiver of rules-based
speedy trial time limits, etc. But the colloquy does not
share the same status as the right itself.
Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 697
(2008) (applying the above principle in the context of waiver of
the right to a jury trial).

As Mallory made explicitly clear, when a petitioner claims
ineffective assistance of counsel based on a failure to object to
an allegedly defective waiver colloquy, the claim must be
analyzed like any other ineffectiveness claim. Id. at 698. The
petitioner cannot prevail merely by establishing that the waiver
colloquy was indeed defective in some way. Rather, the
petitioner must prove that, because of counsel's ineffectiveness,
he waived the constitutional right at issue unknowingly or
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6
These divergent standards have evolved due to the timing of the claim of
ineffective assistance. Specifically, did the claimed ineffective assistance
take place pre- or post-trial.
7
Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011).

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involuntarily, and that he was prejudiced. To establish prejudice,
the petitioner must demonstrate a reasonable probability that
but for counsel's ineffectiveness, he would not have waived the
right at issue. Id. at 698-704. In considering such a claim of
ineffectiveness, the court considers the totality of the
circumstances and the entire record, not just the colloquy itself.
Id. at 698, 704.

Spotz, 18 A.3d at 263-64. In Spotz, the claimed ineffective assistance of

counsel occurred prior to the defendant waiving his constitutional right to

counsel. Accordingly, under Strickland, the proper inquiry is to determine

whether, but for counsel’s ineffective assistance, the defendant would have

waived counsel.

However, case law dictates a different inquiry where the complained of

ineffective assistance of counsel is the failure to raise the issue of a deficient

waiver of counsel colloquy on direct appeal. In 2005, our Supreme Court

determined the primary responsibility for ensuring a proper waiver of

counsel colloquy rested with the trial court, not trial counsel. Accordingly,

the issue of a deficient colloquy could be raised on direct appeal, without

claiming trial counsel ineffectiveness:

Before turning to the merits of Appellant's claim, we will first
address the Commonwealth's allegation that this claim should be
raised as a claim of trial counsel's ineffectiveness. This claim is
properly addressed as the error of the trial court, since Rule 121
of the Pennsylvania Rules of Criminal Procedure sets forth the
procedure a judge must follow to determine whether the waiver
of counsel was made knowingly, voluntarily and intelligently.
Pa.R.Crim.P. 121; see, e.g., Commonwealth v. Brazil, 549
Pa. 321, 701 A.2d 216 (1997); see also [Commonwealth v.]
Starr, 664 A.2d [1326] at 1335 [Pa. 1995)]. In
Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504
(2002), this court considered whether the prosecutor could

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“colloquy” a defendant consistent with Rule 121. We
acknowledged that a defendant had the right to represent
himself at trial. McDonough, 812 A.2d at 506 (citing Faretta
v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975)). We then made clear that when a defendant desired to
represent himself, “he must petition the court and the court
must follow the appropriate legal procedure for securing a valid
waiver of counsel.” Id. Rule 121 provided the appropriate legal
procedure and could be complied with by the prosecutor's
colloquy so long as the prosecutor inquired into the six areas set
forth by the Comments to Rule 121 before the trial judge.
McDonough, 812 A.2d at 506-07. In this way, the trial judge
could ascertain on the record whether there was a knowing,
voluntary, and intelligent waiver of counsel. Id. at 508. We
stressed, however, that it was the trial judge who was
“ultimately responsible for ensuring that the defendant is
questioned about the six areas discussed above and for
determining whether the defendant is indeed making an
informed and independent decision to waive counsel.” Id.
Likewise, we held that it was the “trial judge” that had
the duty to ensure that a defendant's right to counsel was
protected. Id. Thus, we conclude that, consistent with
McDonough, the Rules of Criminal Procedure are clear
that it is up to the trial court, and not counsel, to ensure
that a colloquy is performed if the defendant has invoked his
right to self representation. The Commonwealth's argument that
this claim must be pled as one of ineffectiveness fails.

Commonwealth v. Davido, 868 A.2d 4431, 437-38. (Pa. 2005) (footnotes

omitted) (emphasis added).

When the issue of a defective waiver of counsel colloquy is raised on

direct appeal, there is no requirement that that appellant independently

prove prejudice; pursuant to Commonwealth v. Clyburn, 42 A.3d 296 (Pa.

Super. 2012) citing, inter alia, Commonwealth v. Brazil, 701 A.2d 216

(Pa. 1997) and Commonwealth v. Houtz, 856 A.2d 119 (Pa. Super. 2004),

no showing of prejudice is required. In order to prevail on a direct appeal

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claim of a deficient waiver of counsel colloquy, one need only demonstrate

that the colloquy was, in fact defective. If appellate counsel successfully

demonstrates the defective nature of the waiver of counsel colloquy on

direct appeal, then the appellant will be granted a new trial without having

to prove he or she would not have otherwise accepted counsel. The fact of

the defective colloquy will be sufficient to prevail and obtain a new trial.

Therefore, under Strickland, when appellate counsel ineffective

assistance is alleged, the proper inquiry is whether but for appellate

counsel’s ineffective assistance in failing to raise the issue, would the

outcome of the direct appeal have been different. Under Clyburn, et al,

raising a meritorious claim of a deficient waiver of counsel colloquy on direct

appeal requires the grant of a new trial. Brisco was afforded no relief on

direct appeal; therefore, he suffered prejudice from appellate counsel’s

failure to raise the issue.

Our final inquiry is to determine whether counsel had a reasonable

basis for his action or inaction. Although a hearing was held on Brisco’s

PCRA petition, appellate counsel did not testify. Accordingly, we have no

insight into counsel’s reasons for failing to raise the issue on direct appeal.

Our Supreme Court has instructed that “a lawyer should not be held

ineffective without first having an opportunity to address the accusation in

some fashion.” Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa.

2010). “The fact that an appellate court, reviewing a cold record, cannot

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prognosticate a reasonable basis for a particular failure to raise a plausible

objection does not necessarily prove that an objectively reasonable basis

was lacking.” Id. at 896, quoting Commonwealth v. Spotz, 870 A.2d 822,

832 (Pa. 2005). Accordingly, we must remand this matter to the PCRA court

for further investigation into appellate counsel’s reasoning.8

Order reversed. This matter is remanded for action consistent with

this decision. Jurisdiction is relinquished.

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8
We also note that after jury selection and during the direct examination of
the Commonwealth’s first witness, the trial stopped due to Brisco’s
realization that he was incapable of defending himself. The originally
appointed trial counsel, whom Brisco had previously rejected, was
reappointed and served through the remainder of the trial. However, Brisco
was without counsel for jury selection, which is a critical stage of the
criminal proceeding. See Commonwealth v. McNamara, 662 A.2d 9, 14
(Pa. Super. 1995) (jury selection is a critical stage). The right to counsel
applies to all critical stages. Commonwealth v. Johnson, 828 A.2d 1009
(Pa. 2003). In Clyburn, et al, the defendant was without counsel for the
entire trial. Therefore, the instant matter presents a different factual pattern
than Clyburn. This does not necessarily dictate a different result, given that
the reappointment of counsel occurred during trial but after a critical stage
had passed. As this matter is being remanded for an additional hearing, it
may be prudent for counsel and the PCRA court to address if or how this
difference might affect any subsequent prejudice analysis.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2016

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