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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ERIC WARREN BIEBER
Appellant No. 904 MDA 2019
Appeal from the Judgment of Sentence May 7, 2019
In the Court of Common Pleas of Tioga County
Criminal Division at No: CP-59-CR-0000331-2017
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JULY 23, 2020
Appellant, Eric Warren Bieber, appeals from his judgment of sentence
of 11½-23 months’ imprisonment for carrying firearms without a license and
concurrent sentences for harassment. Appellant argues in this direct appeal
that the trial court erred by permitting him to represent himself during trial
without obtaining his knowing, voluntary, and intelligent waiver of counsel.
We agree with Appellant that his waiver of counsel was inadequate because
the court failed to ensure that Appellant understood the elements of the
firearms and harassment charges. Accordingly, we reverse and remand for
further proceedings on these charges.
Appellant was charged in a 21-count information with four counts of
aggravated assault, four counts of terroristic threats, four counts of simple
assault, four counts of reckless endangerment, four counts of harassment and
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one count of carrying firearms without a license.1 During a pretrial hearing
on January 8, 2018, Appellant advised the court that he wanted to represent
himself at trial. The following colloquy took place:
THE COURT: Okay. Do you understand [] the nature of the
charges and the elements of those charges? Do you understand
what it is the state has accused you of, and what it is they would
have to prove if this case went to trial?
APPELLANT: Yes, your Honor.
THE COURT: All right. Have you received a copy of the criminal
information?
APPELLANT: The discovery —
THE COURT: — the charging document?
APPELLANT: The, the charges themselves? Yes.
THE COURT: Well, there would be a complaint filed, that would
have been filed by the police that . . . usually has several pages
and gives dates, and times, and locations, and then a kind of an
affidavit. And then there’s a separate document that the District
Attorney has to sign a criminal information that lists all the
charges. Do you have those?
APPELLANT: Yes.
THE COURT: Okay. And then I take it you’ve had a chance to look
at them so, you, you can in fact understand what the charges are?
APPELLANT: Yes, your Honor.
THE COURT: Okay. Now, you are charged with a total of 21, it
looks like 21 total counts in this information. The first 4 charges
are all felonies of the second degree. In the Commonwealth of
Pennsylvania, a person who is convicted of a felony of the second-
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118 Pa.C.S.A. §§ 2702(a)(4), 2706(a)(1), 2701(a)(2), 2705, 2709(a)(1), and
6106(a)(1), respectively.
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degree can be sentenced to serve up to 10 years of incarceration
and be ordered to pay up to a S25,000.00 fine, and that would be
on each of the second-degree felonies. Do you understand that?
APPELLANT: Yes.
THE COURT: All right. There are then, at counts, I believe 5
through 8, there are . . . 5 charges that are treated as
misdemeanors of the first-degree; those are a terroristic threats
charge. A first-degree misdemeanor in the Commonwealth is
punishable by a maximum of 5 years of incarceration and up to a
$10,000.00 fine on each count. Do you understand that, sir?
APPELLANT: Yes, your Honor.
THE COURT: All right. The next 8 counts in the criminal
information are all graded as misdemeanors of the second-degree
and they are 4 counts of simple assault, and then 4 counts of
endangering another person. Misdemeanors of the second-degree
are each punishable by up to 2 years of incarceration, and up to
a $5,000.00 maximum fine. Do you understand that?
APPELLANT: Yes.
THE COURT: All right. And then there are charges that are graded
as summary offenses. Summary offenses in the Commonwealth
are punishable by . . . a maximum of 90 days of incarceration,
and a maximum of $300.00 fine. Do you understand that?
APPELLANT: Yes.
THE COURT: And the final count is a charge relating to firearms
and licenses, and that’s a third degree felony. That, as a third-
degree felony, a person could be, who’s convicted, could be
sentenced up to 7 years of incarceration and ordered to pay a total
of $15,000.00 in fines. Do you understand that?
APPELLANT: Yes.
THE COURT: All right. Now, I will tell you right here and now, I
did not add up what all those numbers are, but do you understand
that in the worst possible scenario for you, you could be, if you
were convicted of every charge, . . . all those sentences could be
stacked and run consecutively.
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APPELLANT: Yes, I do.
THE COURT: And [that] looks like about 84 years total time. Do
you understand that?
APPELLANT: Yes.
THE COURT: And well over $100,000.00 in fines. Do you
understand that?
APPELLANT: Yes, I do.
N.T., 1/8/18, at 2-5. Appellant signed a form waiving his right to counsel.
The form inquired, “Do you understand the nature of the charges against you
and the elements of these charges?” Waiver of Counsel Form, 1/8/18.
Appellant answered “yes” and signed his initials next to this answer. Id. The
court permitted Appellant to represent himself. N.T., 1/8/18, at 8.
On the first day of trial, February 6, 2019, a second judge conducted
another colloquy with Appellant concerning the issue of representation.
Noting that Appellant had signed a waiver of representation one year earlier
on January 8, 2018, the judge stated, “I just wanted to go through this with
you again.” N.T., 2/6/19, at 1. The following colloquy took place:
THE COURT: Do you understand the charges against you?
APPELLANT: Yes.
THE COURT: Four counts of aggravated assault, four counts of
simple assault, four counts of reckless endangerment and four
counts of terroristic threats, plus some summary charges that the
Court decides at the appropriate time. [So] you understand those
charges and . . . you understand the allegations against you?
APPELLANT: Yes, I do.
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THE COURT: Very well. Are you aware of the range of potential
sentences for these various offenses?
APPELLANT: Yes, I am.
THE COURT: All right. In other words, the aggravated assaults
are each felonies of the second degree, each punishable by up to
ten years. The simple assaults are misdemeanors of the second
degree, they are each punishable by up to two years. The
terroristic threats are misdemeanors of the first degree, each
punishable by up to five years. And I just want to make sure you
understand the potential maximum sentences.
APPELLANT: Yes.
THE COURT: Very well.
Id. at 1-2. The court also advised Appellant that his firearms charge was a
third degree felony for which the maximum sentence was seven years’
imprisonment. Id. at 3.
The court accepted Appellant’s waiver of counsel, and Appellant
represented himself during trial. The jury found Appellant not guilty of all
felony and misdemeanor charges except the firearms charge. The judge found
Appellant guilty of the four summary offense charges of harassment.
Prior to sentencing, counsel entered his appearance for Appellant. On
May 7, 2019, the court imposed sentence. Through counsel, Appellant filed
timely post-sentence motions but later withdrew them. Appellant then timely
appealed to this Court. Counsel for Appellant filed a timely Pa.R.A.P. 1925
statement of errors complained of on appeal but failed to argue therein that
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Appellant did not knowingly, voluntarily and intelligently waive his right to
counsel.
Appellant filed a motion in this Court seeking a remand to the trial court
for the purpose of filing a supplemental Rule 1925 statement. On November
20, 2019, this Court granted Appellant’s motion for remand. On remand,
Appellant filed a supplemental Rule 1925(b) statement contending that his
waiver of counsel on the day of trial was invalid because the court failed to
describe the elements of each offense during the waiver colloquy. The trial
court filed a supplemental opinion on this subject acknowledging its failure to
describe the elements of the charges but arguing that Appellant suffered no
prejudice.
Appellant raises a single issue in this appeal: “Whether the trial court
violated Appellant’s Sixth Amendment right to counsel by failing to conduct an
adequate colloquy with Appellant as to the elements of the offenses charged
against him?” Appellant’s Brief at 4. This argument is moot with regard to
the charges on which Appellant was acquitted: aggravated assault, simple
assault, reckless endangerment and terroristic threats. Commonwealth v.
Booth, 435 A.2d 1220, 1226 (Pa. Super. 1981) (claimed defects in certain
counts of criminal complaint were moot where defendant was acquitted on
these charges). We consider this argument only in relation to the charges on
which Appellant was found guilty, the firearms and harassment charges.
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A criminal defendant’s right to counsel is guaranteed by the Sixth
Amendment to the United States Constitution and Article I, Section 9 and
Article V, Section 9 of the Pennsylvania Constitution. Commonwealth v.
Clyburn, 42 A.3d 296, 298 (Pa. Super. 2012). Not only does this right apply
to capital offenses, felonies and misdemeanors, but also it applies to summary
offenses, such as the harassment charges in the present case, “when there is
a likelihood that imprisonment will be imposed.” Commonwealth v. Smith,
868 A.2d 1253, 1256 (Pa. Super. 2005).
A defendant has a well-settled constitutional right to dispense with
counsel and defend himself before the court. Clyburn, 42 A.3d at 298. Denial
of a defendant’s right to proceed pro se is not subject to harmless error
analysis on direct appeal. Id.; Commonwealth v. Isaac, 205 A.3d 358, 367
(Pa. Super. 2019).
When a defendant waives his right to counsel and elects to defend
himself, Pa.R.Crim.P. 121 requires the court to conduct a “probing inquiry” on
a series of subjects with the defendant in order to determine whether his
waiver is knowing, voluntary and intelligent. Clyburn, 42 A.3d at 299. One
of these subjects is “that the defendant understands the nature of the charges
against the defendant and the elements of each of those charges.”
Pa.R.Crim.P. 121(A)(2)(b). We have repeatedly emphasized that “it is
incumbent on the court to fully advise the accused [of the nature and elements
of the crime] before accepting waiver of counsel.” Clyburn, 42 A.3d at 299
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(citing Commonwealth ex rel. Clinger v. Russell, 213 A.2d 100, 102 (Pa.
Super. 1965)). “Failure to conduct a thorough, on-the-record colloquy before
allowing a defendant to proceed to trial pro se constitutes reversible error.”
Id. at 300-01; see also Commonwealth v. Houtz, 856 A.2d 119, 124
(“penetrating and comprehensive colloquy” is “mandated”). Furthermore, our
scope of review is narrow. We cannot take the totality of circumstances into
account, such as the defendant’s familiarity with the criminal justice system
or quality of his self-representation, in determining whether he properly
waived his right to counsel. Clyburn, 42 A.3d at 302 n.3; Houtz, 856 A.2d
at 125. We consider only whether the trial court “compl[ied] with the dictates
of Rule [121].” Houtz, 856 A.2d at 125.
Furthermore, “we have long stated that a signed statement alone cannot
establish that a defendant has effectively waived [his] right [to counsel].” Id.
at 300 (citing Russell, 213 A.2d at 101). An “appropriate oral colloquy” must
accompany a written waiver.
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 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.
Id.
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In Clyburn, we held that the defendant’s waiver of counsel was
inadequate under Rule 121 even though the defendant signed a written waiver
of counsel form and received a hearing before the trial judge concerning her
waiver. When the defendant advised the court that she was representing
herself at trial, she signed a written waiver of counsel form that stated, “I
understand the nature of the charges against me and the elements of each of
those charges,” id. at 301, virtually identical to the language used in the
waiver form in the present case. We described the form as “perfunctory” and
concluded that “[t]he waiver form . . . failed to specify the charges brought
against Appellant and the elements of each charge.” Id. We held that
“without sufficient oral inquiry, the signed statement did not adequately
demonstrate that Appellant “comprehended and assented to the contents of
the writing.” Id. Moreover, during the waiver of counsel hearing, the court
directed the prosecutor to explain the nature of the charges. The prosecutor
listed the charges, the grading of each offense, and the permissible sentence
and guidelines range for each charge. Id. The prosecutor did not, however,
“specify the nature and elements of each of those charges.” Id. We vacated
the defendant’s judgment of sentence and remanded for a new trial, stating,
“[N]either in the written waiver of counsel form, nor in the oral colloquy did
the trial judge or issuing authority elicit information from Appellant that
adequately demonstrates she understood the nature of the charges against
her and the elements of each of those charges.” Id.
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In this case, Appellant argues that his waiver of counsel on the first day
of trial, February 6, 2019, was invalid. The Commonwealth counters that
Appellant validly waived counsel during the January 8, 2018 pretrial hearing,
and that his waiver remained effective throughout the remainder of the case,
including trial. Commonwealth’s Brief at 6. It is true that “once a defendant
has made a competent waiver of counsel, that waiver remains in effect
through all subsequent proceedings in that case absent a substantial change
in circumstances.” Commonwealth v. Phillips, 141 A.3d 512, 521 (Pa.
Super. 2016). Accordingly, we will analyze whether Appellant validly waived
his right to counsel either during the January 8, 2018 hearing or at the
beginning of trial on February 6, 2019.
During the January 8, 2018 hearing, Appellant signed a form that asked,
“Do you understand the nature of the charges against you and the elements
of these charges?” This was not a valid waiver of counsel, because this text
was practically identical to the text we found insufficient in Clyburn. Nor did
Appellant validly waive counsel during the colloquy with the court. The court
asked Appellant whether he had copies of the information and criminal
complaint, and Appellant answered that he did. The five-page, 21-count
information listed the elements of, and described the nature of, each count.
The court asked whether Appellant “had a chance to look at [the complaint
and information] so [you] in fact understand what the charges are.” N.T.,
1/8/18, at 3. Appellant responded in the affirmative. Even so, it is impossible
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to tell whether Appellant reviewed the firearms and harassment counts on the
third and fourth pages of the densely-worded information or understood the
nature and elements of those counts. Furthermore, the court did not
expressly mention that Appellant was charged with harassment2 or verbally
review the nature and elements of the firearms or harassment charges3 with
Appellant. Thus, the colloquy was not penetrating or thorough enough to
satisfy the dictates of Rule 121.
Nor was Appellant’s waiver of counsel on the first day of trial
satisfactory, because once again, the court failed to expressly mention that
Appellant was charged with harassment offenses and failed to discuss the
nature or elements of the firearms and harassment charges with Appellant.
N.T., 2/6/19, at 1-2.
The trial court acknowledges that Appellant has a “strong” argument but
insists that Appellant suffered no prejudice from the court’s failure to describe
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2 The court simply stated that the information included several summary
offense charges. Id. at 3-4.
3 For example, the court failed to state the elements of the firearms charge,
i.e., that Appellant “carried a firearm in a vehicle, or carried a firearm
concealed on or about his . . . person, except in his . . . place of abode or fixed
place of business, without a valid and lawfully issued license under the
[U]niform [F]irearms [A]ct. . .” Information, Count 21. Nor did the court
state the nature of this offense, i.e., that “on or about [August 2,] 2017,”
Appellant “did carry a firearm, namely a Stoeger Cougar Model 8040F, .40
caliber pistol, in a vehicle or concealed on or about his person, while outside
his abode or fixed place of business without a valid and lawfully issued
license.” Id.
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the elements of the firearms charge, because “[Appellant’s] defense at trial
indicated a complete understanding of the offense, as he argued that the
weapon in question was subject to a hunting exception so that a concealed
carry permit was not necessary.” Supplemental Opinion, 1/2/20, at 1. We
disagree for several reasons. On direct appeal,
there is no need for a showing of prejudice when a defendant
proceeded to trial without a legally sufficient waiver of her
constitutional right to counsel. See Commonwealth v. Brazil,
[] 701 A.2d 216 ([Pa.] 1997) (granting new trial for defective
waiver colloquy without analyzing whether the appellant suffered
prejudice); Houtz, 856 A.2d at 130 (same).
Clyburn, 42 A.3d at 302 n.3.4 Thus, even if Appellant suffered no prejudice
at all, he is still entitled to relief due to the defective waiver of counsel
colloquy. Further, our precedents instruct that we cannot take the quality of
Appellant’s self-representation into account but must focus solely on whether
the court complied with Rule 121 during the waiver of counsel hearing. Id.
For the reasons given above, the court failed to comply with Rule 121 during
either waiver hearing in this case.
Accordingly, we must grant Appellant a new trial on the firearms and
harassment charges. We vacate his judgment of sentence on these
convictions and remand for a new trial.
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4 In contrast, in a PCRA proceeding, proof of prejudice would be necessary.
Isaac, 205 A.3d at 367 (prejudice not presumed at PCRA stage where
petitioner alleges ineffective assistance of counsel for failing to object to
defective waiver colloquy concerning right to counsel at trial).
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Judgment of sentence vacated on firearms and harassment convictions.
Case remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/23/2020
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