J-S51035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WESLEY WILLIAMS, :
:
Appellant : No. 1429 EDA 2016
Appeal from the Judgment of Sentence January 7, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006572-2015,
CP-51-CR-0006573-2015
BEFORE: BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 28, 2017
Appellant, Wesley Williams, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County, which, sitting
as finder of fact in Appellant’s bench trial, found him guilty of two counts
each of attempted burglary, criminal trespass, and possession of an
instrument of crime (PIC).1 Sentenced to four to ten years’ incarceration on
his convictions for attempted burglary, a concurrent four to ten years for
criminal trespass, and two years’ probation for PIC, Appellant challenges the
validity of his waiver of trial counsel and contends that the court abused its
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 901 and 3502, 3503, and 907, respectively.
J-S51035-17
exercise of sentence discretion. We vacate judgment of sentence and
remand for a new trial.
The trial court aptly provides the factual and procedural history of
Appellant’s case as follows:
On October 22, 2015, following a [pre-trial] colloquy, Defendant
[hereinafter Appellant] was permitted to proceed pro se, with
back-up counsel. Appellant then proceeded to trial before [the
trial] court, sitting without a jury.
***
Mark Paronish testified at trial that on June 11, 2015, he
received a text message from his neighbor which caused him to
go home. N.T. 10/22./15 at 12. He identified a photo of the
rear of his property and testified that he did not give Appellant
permission to enter his home. N.T. at 14-15.
Robert Kopansky testified that he was at home on June 11,
2015, when he saw Appellant climbing over the fence of the
house behind his home. He observed Appellant cup his hands
and peer in through the sliding door identified by Mr. Paronish as
his property and attempt to open the door, before doing the
same at the sliding glass door of the neighboring property. He
attempted to open the sliding glass doors multiple times. N.T. at
17-23, 27. Appellant spent 15-20 minutes in the rear of the
properties. N.T. at 23.
Mr. Kopansky observed that Appelalnt was carrying a small black
shopping bag. N.T. at 21. Appellant removed an orange
handled screwdriver from the bag and attempted to wedge it
into the window of the second property. N.T. at 21, 22-23. Mr.
Kopansky took photographs C-1 and C-2, which now show
Appellant with the black bag, inside the fenced yards at the rear
of the properties. N.T. at 19; C-1 and C-2.
During these events, Mr. Kopansky called 9-1-1. When the
police arrived, he called out to them indicating where Appellant
was located. As the police kicked open the door in the fence to
reach Appellant, he threw the black bag over the fence into the
-2-
J-S51035-17
yard of a neighboring property. N.T. at 23-24. Mr. Kopansky
directed the police to the bag, which they recovered. N.T. at 29.
***
On January 7, 2016, Appellant [received his sentence, as noted
supra. After Appellant filed a successful PCRA petition seeking
reinstatement of his direct appellate rights nunc pro tunc, he
filed this timely direct appeal through the Defender Association
of Philadelphia].
Trial Court Opinion, filed 9/19/16 at 1, 2-3.
Appellant presents the following questions for our review:
I. DID NOT THE LOWER COURT ERR BY FAILING TO
CONDUCT A COMPLETE AND THOROUGH ON THE
RECORD COLLOQUY OF APPELLANT BEFORE
ALLOWING HIM TO PROCEED TO TRIAL PRO SE IN
VIOLATION OF PENNSYLVANIA RULE OF CRIMINAL
PROCEDURE 121, WHICH RESULTED IN AN
UNKNOWING, INVOLUNTARY AND UNINTELLIGENT
WAIVER OF HIS RIGHT TO COUNSEL UNDER THE
SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 9 OF THE
PENNSYLVANIA CONSTITUTION?
II. DID NOT THE LOWER COURT VIOLATE THE PRECEPTS
OF THE PENNSYLVANIA SENTENCING CODE AND
IMPOSE A SENTENCE THAT WAS MANIFESTLY
UNREASONABLE, EXCESSIVE AND AN ABUSE OF
DISCRETION?
Appellant’s brief at 4.
Appellant contends that the trial court erred in permitting him to
proceed pro se without conducting an adequate waiver-of-counsel colloquy.
Appellant begins by pointing out that a defendant's waiver of his federal and
state constitutional rights to counsel must be knowing and intelligent, which
requires a trial court to engage in a probing inquiry to ensure that the
individual understands his right to counsel and the consequences of waiving
-3-
J-S51035-17
counsel. Appellant’s brief at 16. He continues that there is a presumption
against waiver and that waiver may not be presumed where the record is
silent. Instead, the record must clearly demonstrate an informed
relinquishment of a known right. Id. at 17 (citing Commonwealth v.
Payson, 723 A.2d 695, 700 (Pa.Super. 1999)).
Notably, the trial court concedes that its colloquy was deficient under
Rule 121, infra, and recommends that we vacate judgment of sentence and
remand this matter for a new trial. The Commonwealth does not contest
Appellant’s position as to the deficiency of the colloquy, but it responds that
Appellant waived his claim where neither he nor his defense counsel
objected during the colloquy or immediately afterward when the court asked
if there were any questions or concerns. We address the Commonwealth’s
waiver position first.
In Commonwealth v. Davido, 868 A.2d 431 (Pa. 2005), which
involved a PCRA appeal, the Pennsylvania Supreme Court held that a trial
court has a sua sponte duty to ensure that a proper colloquy is performed
when a defendant seeks to represent himself. In so holding, the Davido
Court rejected the position that it is incumbent upon counsel to object to a
colloquy. Specifically, the Court reasoned:
In Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504
(2002), this court considered whether the prosecutor could
“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
-4-
J-S51035-17
(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.[]
Davido, 868 A.2d at 437–38. (footnotes omitted).2 Given the Supreme
Court’s decision in Davido, therefore, we discern no merit to the
Commonwealth’s waiver argument.
____________________________________________
2
In footnote 12 of Davido, the Majority clarified that Rule 121(c) imposes a
duty on the trial court to conduct, sua sponte, a full and complete waiver
colloquy even where counsel does not squarely invoke the defendant’s right
to self-representation on his behalf. The Majority also dismissed the concern
expressed in a concurring opinion that the decision “endorses hybrid
representation.” To this point, the Majority opined “at the time a
defendant has affirmatively asserted his desire to proceed pro se,
the defendant and his counsel are no longer working in concert. In
fact, requiring counsel to take further action on a defendant’s behalf
after the defendant has requested to proceed pro se would
undermine the Sixth Amendment right to self representation.” Id.,
at 438 n.12 (emphasis added).
-5-
J-S51035-17
We proceed, then, to review the adequacy of the trial court’s waiver of
counsel colloquy. The Pennsylvania Supreme Court promulgated
Pa.R.Crim.P. 121 to guide trial courts in determining whether a defendant
was knowingly, voluntarily, and intelligently waiving his right to an attorney.
That rule provides:
A) Generally.
(1) The defendant may waive the right to be represented by
counsel.
(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
(f) that the defendant understands that, in addition to defenses,
the defendant has many rights that, if not timely asserted, may
-6-
J-S51035-17
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.
(3) The judge or issuing authority may permit the attorney for
the Commonwealth or defendant's attorney to conduct the
examination of the defendant pursuant to paragraph (A)(2). The
judge or issuing authority shall be present during this
examination.
(B) Proceedings Before an Issuing Authority. When the
defendant seeks to waive the right to counsel in a summary case
or for a preliminary hearing in a court case, the issuing authority
shall ascertain from the defendant whether this is a knowing,
voluntary, and intelligent waiver of counsel. In addition, the
waiver shall be in writing,
(1) signed by the defendant, with a representation that the
defendant was told of the right to be represented and to have an
attorney appointed if the defendant cannot afford one, and that
the defendant chooses to act as his or her own attorney at the
hearing or trial; and
(2) signed by the issuing authority, with a certification that the
defendant's waiver was made knowingly, voluntarily, and
intelligently.
The waiver shall be made a part of the record.
(C) Proceedings Before a Judge. When the defendant seeks
to waive the right to counsel after the preliminary hearing, the
judge shall ascertain from the defendant, on the record, whether
this is a knowing, voluntary, and intelligent waiver of counsel.
(D) Standby Counsel. When the defendant's waiver of counsel
is accepted, standby counsel may be appointed for the
defendant. Standby counsel shall attend the proceedings and
shall be available to the defendant for consultation and advice.
Pa.R.Crim.P. 121.
At Appellant’s October 22, 2015, waiver of counsel hearing, the trial
court conducted the following colloquy:
-7-
J-S51035-17
COURT: How old are you today, sir?
APPELLANT: Fifty-five.
Q: How far did you go in school?
A: Ninth grade.
Q: Do you read, write, and understand the English language?
A: Yes.
Q: Are you under the influence today of any drugs or alcohol?
A: No.
Q: Have you taken any medication in the past two days?
A: Just for my pain.
Q: All right. Do you have trouble understanding what I’m
saying or what’s going on today?
A: No.
Q: Have you ever been diagnosed with a mental illness or
condition?
A: No.
Q: Has anybody forced you or coerced you to request self-
representation in this case?
A: No.
Q: All right. Is this a decision that you discussed with your
attorney?
A: Yes.
Q: Do you understand, sir, that if you represent yourself, you
would be at a substantial disadvantage because of your
-8-
J-S51035-17
knowledge about the law and the process and trial litigation? Do
you understand that?
A: Yes.
Q: You are willing to take on that disadvantage?
A: Yes.
Q: Do you understand that, while we may make some
concessions since you’re not a lawyer, the rules still apply to
you?
A: Okay.
Q: You making that decision voluntarily despite these
warnings means that if you are convicted and you raise this as
an issue for appeal, it probably will not be successful because
you are being warned and an attorney is being made available to
you. Do you understand that?
A: Okay.
Q: Do you understand that?
A: Yes.
N.T. 10/22/15, 7-9.
Appellant submits that the trial court did not conduct a proper
colloquy, as it overlooked critical provisions of Rule 121. Specifically, the
court failed to ask whether Appellant understood the nature of the charges
of attempted burglary, criminal trespass and possession of an instrument of
crime, and the elements of each of the charges, he argues. It failed to elicit
whether Appellant was aware of the permissible range of sentences and/or
fines for the charges and whether he understood that there were possible
defenses to the charges of which counsel might be aware, he continues.
-9-
J-S51035-17
Finally, the court failed to ask if he understood that, in addition to defenses,
he possessed other rights and possible grounds to object to court errors that
might be lost permanently if not timely asserted.
Our review of the record, Rule 121, and interpretive decisional law
leads us to agree with both Appellant and the trial court that the court’s
colloquy failed to ask crucial questions designed to ascertain that a
defendant understands the nature of the charges against him, the elements
of each of those charges, and the permissible range of sentences and/or
fines for the offenses charged. Without confirming Appellant’s
understanding of such matters, the court could not verify that his decision to
waive his right to counsel and proceed pro se was knowing, voluntary, and
intelligent. Accordingly, we are constrained to vacate judgment of sentence
and remand for a new trial.3
Judgment of sentence is vacated. Case remanded for proceedings
consistent with this decision. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2017
____________________________________________
3
Our order vacating judgment of sentence renders moot the second issue
Appellant raises for our review.
- 10 -