Com. v. Myers, R.

J-S22025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RENADA BARBARA MYERS :
:
Appellant : No. 342 EDA 2022

Appeal from the Judgment of Sentence Entered October 20, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-003198-2018

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 28, 2022

Renada Barbara Myers (Appellant) appeals from the judgment of

sentence entered in the Chester County Court of Common Pleas following her

jury convictions of four counts of robbery,1 two counts of burglary,2 and one

count each of theft by unlawful taking or disposition (theft), criminal use of a

communication facility, prostitution, and criminal conspiracy to commit

robbery, burglary, and theft.3 The trial court imposed an aggregate sentence

of five to ten years’ incarceration, followed by ten years of probation.

____________________________________________

1 18 Pa.C.S. § 3701(a)(1)(ii), (iii), (iv), and (v).

2 18 Pa.C.S. § 3502(a)(1)(i) and (ii).

3 18 Pa.C.S. §§ 3921(a), 7512(a), 5902(a)(1), and 903(a)(1)-(2),
respectively.
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Appellant contends that the trial court erred when it failed to address her claim

of ineffective assistance of trial counsel. Based on the following, we affirm.4

A detailed recitation of the underlying factual history is not necessary

for this appeal. Briefly, we note Appellant’s convictions stem “from her role

in a vicious home invasion robbery that occurred in the late evening and early

morning hours of August 7–8, 2018.” Trial Ct. Op., 4/1/22, at 2 (footnote

omitted).5 A five-day jury trial began on May 24, 2021.6 On May 28, 2021,

the jury convicted Appellant of the above-mentioned crimes. On October 20,

2021, the court sentenced Appellant as follows: (1) a term of two and one-

____________________________________________

4 On September 19, 2022, Appellant filed a pro se application to proceed pro
se. “It is well settled that a criminal defendant or appellant has the right to
proceed pro se at trial and through appellate proceedings.” Commonwealth
v. Rogers, 645 A.2d 223, 224 (Pa. 1994). However, in Rogers, the
Pennsylvania Supreme Court held that when an appellant requests pro se
status after their counsel has filed an appellate brief, the request is considered
untimely. Id. at 224. The Supreme Court opined that “[a]llowing [an
a]ppellant . . . to terminate counsel and proceed pro se on amended and
supplemented briefs would, we believe, result in . . . confusion and
overburdening of the court[.]” Id. The Court further concluded: “[I]t is
appropriate to prohibit such a tactic and to require an appellant to remain with
counsel through the appeal, once counsel has filed briefs. We also emphasize
that this policy would in no way undermine an appellant’s interest in adequate
representation.” Id. Turning to the instant matter, Appellant filed her
application to proceed pro se well after her appellant’s brief was filed on May
12, 2022. Therefore, in accordance with Rogers, we deny Appellant’s
application.

5 We refer the reader to the trial court’s Opinion Sur Pa.R.A.P. 1925(a) for a
thorough factual history. See Trial Ct. Op. at 4-27.

6 At the time of trial, Appellant was represented by Phillip A. Simon, Esquire
(“trial counsel”).

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half to five years’ incarceration for the conspiracy to commit robbery

conviction; (2) a consecutive term of two and one-half to five years’

imprisonment for the Section 3701(a)(1)(ii) robbery conviction; and (3) a

consecutive term of ten years’ probation for the Section 3502(a)(1)(i) burglary

conviction. The court imposed no further penalty with respect to the

remaining convictions.

During this time, trial counsel filed a motion to withdraw. The trial court

held a Grazier7 hearing on July 2, 2021, to address the motion. Five days

later, the court granted trial counsel’s motion to withdraw and appointed

Edward J. Gallen, Esquire, to represent Appellant.

On October 27, 2021, Appellant filed a post-sentence motion, in which

she alleged, in relevant part, that: (1) her constitutional rights were violated

because at the time of her initial custodial interview, she was not advised of

the right to remain silent as required by Miranda v. Arizona, 384 U.S. 436

(1966); and (2) trial counsel was ineffective for failing to file a motion to

suppress her in-custody statement when she had not been expressly warned

of her right to remain silent.8 See Post-Sentence Motion, 10/27/21, at 2-6,

8-10. An evidentiary hearing was held on December 16, 2021. The court

____________________________________________

7 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

8 Appellant also raised sufficiency and discretionary aspects of sentencing
claims.

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denied the motion on January 11, 2022, rejecting her “contention that she

[was] entitled to a new trial and/or judgment of acquittal because her

Miranda warnings failed to expressly state that she had the right to remain

silent [as] without merit” and finding her “ineffective assistance claims [were]

not appropriate to be tried at this stage[.]” Order, 1/11/22, at 1 n.1. The

court deferred the ineffectiveness claims for collateral review. Id. This timely

appeal followed.9

Appellant raises the following issue on appeal: Did the trial court err

and abuse its discretion in denying her post-sentence motion by finding her

Miranda claim had no merit and resultingly, her ineffectiveness argument

____________________________________________

9 On January 19, 2022, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant filed a concise statement on February 6, 2022. The court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on April 1, 2022.

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must await review under the Post Conviction Relief Act10 (PCRA). See

Appellant’s Brief at 4.11, 12

Appellant alleges that trial counsel was ineffective for failing to file a

motion to suppress her confession because her Fifth Amendment right against

self-incrimination was violated. See Appellant’s Brief at 39. She states: (1)

the underlying claim had arguable merit because she was not advised

specifically of her right to remain silent at her custodial interrogation; (2) trial

counsel had no reasonable basis for failing to request suppression of her

statements; and (3) counsel’s ineffectiveness was prejudicial as “there is more

than a reasonable probability sufficient to undermine confidence in the

outcome of the proceeding.” Id. at 39-41 (citations & quotation marks

omitted).

____________________________________________

10 42 Pa.C.S. §§ 9541-9546.

11 In Appellant’s concise statement, she raised four additional claims
(admissibility of evidence, sufficiency, and weight challenges). See
Appellant’s Concise Statement of Matters Complained of on Appeal, 2/6/22,
at 3-7. However, in her appellate brief, Appellant indicated that these claims
were frivolous and without merit and therefore, she did not develop any
argument with respect to these issues. See Appellant’s Brief at 4-11. Based
on her assertions, we will deem these issues abandoned by Appellant for
review purposes. See Commonwealth v. Dunphy, 20 A.3d 1215, 1218-19
(Pa. Super. 2011) (finding issues raised in Pa.R.A.P. 1925(b) statement that
are not included in appellate brief are abandoned).

12 We have rearranged Appellant’s argument for ease of disposition.

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Moreover, Appellant disagrees with the court’s determination that the

ineffectiveness claim should be deferred to PCRA review because neither

exception, as set forth in Commonwealth v. Holmes, 79 A.3d 562 (Pa.

2013), applies. See Appellant’s Brief at 43. She states the first exception

was satisfied because this was a “clear and obvious violation” of her

constitutional right and was “so very extraordinary and meritorious that

justice required immediate consideration and relief.” Id. As for the second

exception, Appellant contends that “no prolix claims were raised” and she “did

express a knowing[ ] and voluntary[y] waiver of her PCRA review right.” Id.

at 44 (quotation marks omitted).

Appellant next addresses her underlying claim ─ that her constitutional

right against self-incrimination13 “was violated when she was not advised

effectively and/or specifically of her right to remain silent at her in-custody

interrogation.” Appellant’s Brief at 35. She states the August 15, 2018, line

of questioning, conducted by Corporal Gallani of the Pennsylvania State Police,

did not comply with Commonwealth v. Smith, 297 A.2d 810, 813 (Pa. 1972)

(reversing defendant’s conviction and awarding him a new trial because police

failed “to expressly inform[ ] him of his right to remain silent” during a

custodial interrogation). Appellant’s Brief at 35. She alleges Corporal Gallani

“failed to effectively warn” her of her Fifth Amendment right when “in

____________________________________________

13 See U.S.Const. amend. V & Pa.Const. art.1 § 9.

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essence[, he said] no more than we are going to talk, I will ask questions and

you, [Appellant,] can answer some, all or whatever[.]” Id. at 37-38.

Appellant alleges this statement was “insufficient to establish that [she]

voluntary[ily], intelligent[ly], and knowingly waived her absolute right to

remain silent.” Id. at 38.

We reiterate that trial counsel did not file a motion to suppress, and

therefore, the only means for Appellant to pursue her Fifth Amendment claim

is by raising an ineffective assistance of counsel argument. However, before

we can address the merits of Appellant’s underlying, substantive claim, we

must first consider the threshold question of whether the trial court erred by

not considering her ineffectiveness claim on direct appeal by finding she did

not knowingly waive her right to PCRA review.

In Holmes, the Pennsylvania Supreme Court reaffirmed the general rule

that was initially set forth in Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002) ─ that “claims of ineffective assistance of counsel are to be deferred to

PCRA review; trial courts should not entertain claims of ineffectiveness upon

post-verdict motions; and such claims should not be reviewed upon direct

appeal.” Holmes, 79 A.3d at 576 (footnote omitted). The Holmes Court

provided for two limited exceptions to this general rule: 1) in “an extraordinary

case where the trial court, in the exercise of its discretion, determines that a

claim (or claims) of ineffectiveness is both meritorious and apparent from the

record so that immediate consideration and relief is warranted[;]” or (2) when

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the defendant raises “multiple, and indeed comprehensive, ineffectiveness

claims[,]” which the court, “in its discretion, and for good cause shown,”

determines post-verdict review is warranted, and the defendant waives his

right to PCRA review. Holmes, 79 A.3d at 577-78. It merits emphasizing

that both exceptions fall “within the discretion of the trial judge.” Id. at 563.

The Pennsylvania Supreme Court subsequently recognized a third

exception permitting courts “to address claims challenging trial counsel’s

performance where the defendant is statutorily precluded from obtaining

subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d 352, 361

(Pa. 2018). This exception is not applicable to the case at hand because, as

the trial court points out, “there is nothing barring [Appellant] from seeking

collateral review[.]” Trial Ct. Op. at 28.

We also acknowledge that the Pennsylvania Supreme Court recently

provided an additional limited circumstance where an appellant may raise a

claim of ineffective assistance of counsel outside of a PCRA petition. See

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). In Bradley, the

Supreme Court emphasized the necessity to enact a “more appropriate

mechanism for the enforcement of effective assistance of counsel in PCRA

proceedings.” Id. at 401. The Court held “that a PCRA petitioner may, after

a PCRA court denies relief, and after obtaining new counsel or acting pro se,

raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so,

even if on appeal.” Id. (footnote omitted). Because review of Appellant’s

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case is at the direct appeal stage and Appellant has not had the opportunity

to file a PCRA petition, Bradley is not applicable. Accordingly, we are left with

the question of whether either Holmes exception is applicable.

Moreover, we note that

in order for a defendant to raise counsel’s ineffectiveness on direct
appeal, he or she must expressly, knowingly and voluntarily waive
his or her right to PCRA review. Thus, established waiver
principles must be applied to waiver of PCRA review when a
defendant wishes to expedite the review of ineffective assistance
of counsel claims by way of a post-trial motion. Consequently, a
defendant must participate in an on-the-record colloquy, which
ensures the defendant is aware of the rights being waived, i.e.,
the “essential ingredients” of PCRA review. This includes, but is
not limited to, an explanation of (1) the eligibility requirements
for PCRA relief; (2) the right to be represented by counsel for a
first PCRA petition; (3) the types of issues that could be raised
pursuant to the PCRA that are now being given up; and (4) the
PCRA is the sole means of obtaining nearly all types of collateral
relief. See 42 Pa.C.S. §§ 9542-9543; Pa.R.Crim.P. 904(C). The
trial court must also ensure the defendant has made the decision
to waive [her] right to PCRA review after consulting with counsel
(if any) and in consideration of his rights as they have been
explained in the colloquy.

Commonwealth v. Baker, 72 A.3d 652, 668 (Pa. Super. 2013) (footnote

omitted).

The record reveals that at the December 16, 2021, post-sentence

motion hearing, the parties and the court extensively discussed the legal

ramifications of Appellant’s ineffectiveness claim on direct appeal:

[The Commonwealth]: . . . The Commonwealth is ready to
proceed on all motions. The issue that I feel is necessary to put
on the record is that [Appellant] would be waiving her PCRA rights
if we do move forward with some of the issues brought up in the
motion today, and, specifically, the motion for ineffectiveness of
counsel.

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I did try to communicate that with [Attorney Gallen] about
that issue to see if he’s informed [Appellant] that she would be
waiving those rights, the importance of waiving her PCRA rights.
It seems as though counsel’s under the impression that new case
law has changed that, and cites . . . Bradley. . . . [T]hat case
has no effect on ineffectiveness claims for trial counsel. That case
is, specifically, about ineffectiveness claims with regards to PCRA
counsel. . . .

And the current law on raising this issue and waiving PCRA
rights does remain the same importance of waiving the PCRA
rights in order to actually address an ineffectiveness of counsel
claim. It does still exist under the law.

So in order to move forward on any of those motions, there
needs to be a formal colloquy of her waiver of those rights.

THE COURT: [Attorney] Gallen.

[Attorney Gallen]: I agree in part, disagree in part. But I
would agree that she has via waiver before the Court as to the
PCRA, as to ineffectiveness of [trial counsel].

THE COURT: All right.

The Commonwealth’s point is well taken. I share the
concern that if we move forward on the ineffectiveness, the partial
claim today, that [Appellant] is, potentially, waiving those rights
moving forward on PCRA.

* * *

[Attorney Gallen: The Commonwealth] mentioned Bradley,
which is a very recent case with the Supreme Court, a lot of help
from [a]micus filings, discuss the present state of the PCRA. Part
of that discussion [had to do with] lapping, that has replaced
attorneys over time with that PCRA.

The reason I brought it up, it appears from the discussion,
and that really won’t have an impact on her PCRA today, but it
does show that the Supreme Court is influx about PCRA. PCRA
originated . . . with [Commonwealth v.] Hubbard[, 372 A.2d
687 (Pa. 1977)]. [Under Hubbard, Appellant] could file an

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J-S22025-22

indirect appeal ineffectiveness. After Hubbard came Grant,
which then restricted . . . the PCRA. And then I think it’s
[Commonwealth v.] Bomar,[ 826 A.2d 831 (Pa. 2003),] which
does, under very limited conditions, which requires a waiver of
defendant that she . . . could bring ineffectiveness up at an earlier
time. The reason we’re bringing it up today is it’s an extremely
narrow focus of law.

Basically, the contention is that the statement which was
used against her where we’re arguing which was acquired without
having been told to expressly advise of her right to remain silent,
was the crux of the Commonwealth’s case against [Appellant].

. . . It’s not a discussion of we had a suppression, was the
Court right or wrong. The case law as to the statement being
given to the defendant of right to remain silent is very, very
specific, and constantly use the phrase must be expressly, and
given, something you can’t avoid by some other wording.

So with that in mind, and the fact that it would go to PCRA,
what would happen if we don’t do it today, most likely or not,
we’re going to file an appeal to the Superior Court, and go through
the Superior Court, they remand it back. Then you go back to the
Supreme Court, then [Appellant] gets a PCRA hearing. But the
facts remain the same. And, more likely than not, in a PCRA
hearing, where I believe it might come back to this Court to
determine if the trial attorney was effective or ineffective in not
suppressing this statement, basically, did he have a reasonable
reason for not suppressing the statement.

THE COURT: But, counsel, let me ask you this: You don’t
believe that the current state of the law in Pennsylvania
gives your client two bites at the PCRA apple on this issue;
do you?

[Attorney Gallen]: The second bite, no, because -- you bring
up my mention lapping of attorneys. One of the issues I saw, as
her new attorney, as I should, at least, bring it up, and if she
doesn’t want to waive it, it goes up, fine. I didn’t ignore it. But I
didn’t want to cause lapping because I was ineffective. So that
would be part of the discussion.

THE COURT: Have you discussed this all with [Appellant]?

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[Attorney Gallen]: Yes, your Honor. I, basically, told her
that [at] the hearing today, I’m asking the Court to . . . hear
testimony from [trial counsel] as to why he didn’t suppress this,
and is there a reasonable basis for doing so. And if the Court finds
that it wasn’t a reasonable basis, then the Court -- and it’s my
argument -- could then act on the idea of interest of justice and
fair play . . . and the economy of the judicial system, and . . . find
the issue of motion for new trial, she understands by waiving
it, she can’t bring up that issue as to [trial counsel]’s
ineffectiveness with the PCRA court at a further time. But
she can bring up mine, if it exists.

THE COURT: And your client wants to move forward
today with this, knowing that it would be a waiver of her -
-

[Attorney Gallen]: Of that issue.

THE COURT: -- later timed PCRA rights on the issue of [trial
counsel]’s -- any claim that she may wish to present with
regard to ineffectiveness of trial counsel.

[Attorney Gallen]: Any issue, or this specific issue of not
suppressing the statement?

My contention is, it’s the specific issue of not
suppressing the statement.

THE COURT: All right.

And you have authority that you can make a hybrid
claim? You can bring up part of it now and part of it later?
Do you have authority for that?

[Attorney Gallen]: No, I do not.

THE COURT: Commonwealth, do you have a position?

[The Commonwealth]: Your Honor, aside from the issue of
losing her PCRA rights, I still would argue that this is not an
appropriate claim for today’s purposes. The law is still clear that
a criminal defendant needs to wait to raise claims of ineffective
assistance of trial counsel until a collateral review. And there are
two very specific exceptions to that rule.

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The first -- both of them cited in . . . Holmes, and
Commonwealth versus Harris[, 114 A.3d 1 (Pa. Super. 2015)].

Does your Honor want me to go through the exceptions for
the record?

THE COURT: Go ahead.

[The Commonwealth]: The first exception would be that . .
. there may be an extraordinary case where the trial court, in its
exercise of its discretion, determines that a claim or claims of
ineffectiveness is both meritorious and apparent from the record
so that immediate consideration or relief is warranted.

Under the first exception, your Honor would have to find
that this claim of ineffectiveness is both meritorious and apparent
from the existing trial record, so much so that immediate
consideration or relief is warranted.

The second exception, your Honor, is that our Supreme
Court has determined in cases where prolix claims of
ineffectiveness are raised, unitary review, if permitted at all,
should only proceed where it’s accompanied by a knowing,
voluntary and express waiver of PCRA review.

If your Honor were to consider this prolix claim of
ineffectiveness, then you may only proceed if the defendant
provides that knowing, voluntary and express waiver.

THE COURT: Anything else?

[The Commonwealth]: No, your Honor. I just, under that
standard, I don’t believe that this claim fits for the Court’s analysis
today.

[Attorney Gallen]: If I may respond, your Honor?

THE COURT: All right.

* * *

[Attorney Gallen]: Your Honor, I was actually going to use
[Harris] myself.

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And counsel, basically, stated it correctly, but prolix, I
actually had to go look that up, P-R-O-L-I-X, so that’s a
widespread claim, not what this Court says, and in the end if
counsel’s act or omission so undermines the true determination
process so no reliable adjudication of guilt or innocence could have
taken place.

And our contention is the failure to suppress that statement,
the crux of the Commonwealth’s case in this case, is apparent.
It’s apparent in the record. The Court’s aware of the Miranda
rights. When you look at the record of the testimony in court
during trial, the trooper testifies that, oh, I read [Appellant] her
rights. One, the review of the video, he read nothing to her. He
quoted from memory. And he starts with right to an attorney.

He never said says expressly to the defendant that the
defendant had a right to remain silent. And that is apparent in
the record and in the testimony in the court.

THE COURT: All right.

I am going to take just a moment. I’ll be right back.

[The Commonwealth]: Your Honor, I apologize, before you
step down, if I may briefly respond to make this a little easier
because there is a lot of argument here and in this motion about
this express warning of Miranda. But the Supreme Court and
Pennsylvania Courts have been very clear that Miranda does not
need to be some direct quote.

* * *

It must simply, reasonably convey to the suspect his or her
rights.
[Attorney Gallen]: Your Honor, on that point --

THE COURT: I don’t want to hear the argument on the
Miranda now. I’m well aware of both sides’ arguments on that
particular issue. I think I was more interested in your argument
on how we get to that today, or whether we do.

* * *

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As far as . . . the ineffectiveness claim, that would be,
generally speaking, reserved for PCRA. I have heard your legal
arguments on case law . . . for your different positions with regard
to this, defense believing that you can proceed on this
limited issue piecemeal, and then still retain the rest of
whatever PCRA claims may exist; and the Commonwealth’s
insistence that the only way to move forward is with
complete waiver of PCRA ineffectiveness rights. I do not
believe that we have a provision that provides for hybrid
piecemeal. And I think -- I am unwilling to entertain that claim
today. That is more appropriately designed for PCRA.

* * *

I think even with your client’s waiver, I disagree with you on the
law, counsel. I don’t think she can carve out that one piece
and retain those rights going forward, and that concerns
me.

[Attorney Gallen]: Your Honor, on the PCRA, when one files,
there is a basis for the complaint. So if [Appellant] wanted to file
after today an ineffectiveness of counsel against [trial counsel], I
believe from reading different PCRA’s that she could file,
not for ineffectiveness due to failure to suppress, but
ineffectiveness maybe for something else that occurred
during trial. It doesn’t preclude her from attacking some other
issue of ineffectiveness. Ineffectiveness isn’t totally enunciated
why they are ineffective.

THE COURT: You have made your record. I have made my
ruling. . . .

N.T., 12/16/21, at 6-17 (emphases added).

In its Rule 1925(a) opinion, the trial court further explained its rationale

for finding Appellant did not knowingly waive her right to PCRA review as

follows:

At the hearing on [Appellant]’s post-sentence motion, [Attorney
Gallen] asserted that his client would waive her right to file a PCRA
with respect to the claims against trial counsel that she wished to
raise on direct appeal. However, case law informs that any waiver

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of PCRA rights in favor of direct review of ineffectiveness claims is
a waiver of the right to file a PCRA in its entirety, not simply the
specific claims that will be the subject of direct review.

* * *

Determining that a waiver premised on the belief that the
right to pursue collateral relief on other issues, including other
ineffectiveness issues that may be apparent upon a later review
of the record, was not only impermissible but too prejudicial to
[Appellant]’s interests, this Court rejected the purported waiver
and deferred [her] ineffectiveness claims for collateral review.

Trial Ct. Op. at 30-31 (citations omitted).

The trial court then addressed the Holmes exceptions, opining:

Nevertheless, even if we were inclined to adopt [Appellant]’s
position, neither of the pertinent exceptions to Grant’s deferral
rule are applicable here. In order to invoke the first exception
under Holmes, supra, the error assigned to counsel must be
apparent from the record and meritorious to the extent that
immediate consideration best serves the interests of justice[.]
[Appellant]’s claim against trial counsel, specifically, that counsel
was ineffective for failing to move to suppress [Appellant]’s
custodial statement on the grounds that the Miranda warnings
she received were defective, is not apparent from the record, nor
is it, upon studious reflection, meritorious.

[Appellant]’s sole claim in support of the notion that her
Miranda rights were deficient is that Corporal Gallina did not
specifically and expressly use the words “You have the right to
remain silent.” Without this specific language, [Appellant] claims,
her waiver of her Fifth Amendment and Article I, Section 9 rights
was not knowing, voluntary, and intelligent. In Duckworth v.
Eagen, 109 S.Ct. 2875 (U.S. 1989), the United States Supreme
Court stated, with respect to the sufficiency of Miranda warnings,

We have never insisted that Miranda warnings be given in
the exact form described in that decision.[ ] In Miranda
itself, the Court said that “[t]he warnings required and the
waiver necessary in accordance with our opinion today are,
in the absence of a fully effective equivalent, prerequisites
to the admissibility of any statement made by a defendant.”

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384 U.S. at 476 (emphasis added). See also Rhode
Island v. Innis, . . . 100 S.Ct. 1682, 1687 . . . ([U.S.]
1980)(referring to “the now familiar Miranda warnings . . .
or their equivalent”). In California v. Prysock, . . . 101
S.Ct. 2806 . . . ([U.S.] 1981)(per curiam), we stated that
“the ‘rigidity’ of Miranda [does not] exten[d] to the precise
formulation of the warnings given a criminal defendant,”
and that “no talismanic incantation [is] required to satisfy
its strictures.” Id., at 359, 101 S.Ct. at 2809.

Duckworth v. Eagen, 109 S.Ct. 2875, 2880 (U.S. 1989). In
other words, the Miranda advisement need not be given in the
exact format described in the Miranda decision; it is enough that
the advisement reasonably conveys to a suspect his or her rights
as required by Miranda. Duckworth v. Eagan, 109 S.Ct. 2875
(U.S. 1989). . . . [C]ases previous to Duckworth, supra, place
heavy emphasis on the need for “effective” Miranda warnings and
do not incorporate a requirement for “magic language” without
which Miranda advisements cannot be considered sufficient. . . .

The cases relied upon by the defense are distinguishable.
For example, in Commonwealth v. Campbell, 275 A.2d 64 (Pa.
1971), also prior to Duckworth, supra, a case advanced for the
proposition that the talismanic words “You have the right to
remain silent” are required, the Court’s decision was predicated
on the fact that, unlike in the present matter, there was a
complete failure to warn the defendant of his right to remain
silent. Because of this complete failure, it could not be said that
the defendant was “effectively” warned of his right to remain
silent. The case of Commonwealth v. Smith, 297 A.2d 810 (Pa.
1972), again pre-Duckworth, . . . involved a situation where
there was a complete failure to warn the defendant of his right to
remain silent. Because of their unique factual patterns, these two
. . . cases are distinguishable from the one sub judice. In
Commonwealth v. Bullard, 350 A.2d 797 (Pa. 1976), another
pre-Duckworth case, the defendant was interrogated while in
custody shackled to a chair, after asserting his rights to remain
silent and not be questioned in the absence of counsel. The Court
determined that his one-word responses to law enforcement’s
advisement of his Miranda rights, made while he was chained to
a chair in a police interrogation room, did not constitute a free and
uncoerced decision to waive his rights. Commonwealth v.
Bullard, 350 A.2d 797 (Pa. 1976).

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In the matter before the Court, [Appellant] was not
shackled. She was not restrained in any way. She was advised
that she could terminate the encounter at any time. The facts of
Bullard, supra, as well as the basis for the Court’s decision, are
in stark contrast to the facts of the present case and the basis of
our decision, and therefore the Bullard, supra case is
distinguishable. Further, as we indicated above, the Bullard,
supra case arose prior to Duckworth, supra and thus, at least
insofar as it may arguably have any import regarding the
sufficiency of proffered Miranda warnings, its continued vitality is
questionable.

As the Commonwealth recited from the transcript of
[Appellant]’s August 15, 2018 interview with Corporal Gallina, it
is evident that the Corporal provided [Appellant] with an effective
notice of her right to remain silent. Corporal Gallina told her that
she has the right to have an attorney talk to her prior to and
during questioning; that anything she said can and will be used
against her in a court of law; anything that she might do would be
used against her in a court of law; and that if she could not afford
an attorney, one would be provided for her. [Appellant]
responded, “Mm-hm.” Corporal Gallina then told [Appellant], “if
you do decide to answer any questions, you can start talking at
any time. And then you can stop at any time - okay. You can
answer all my questions, some question or whatever. Okay the
ball[’]s in your court. Corporal Gallina’s warnings to [Appellant]
advised her that she was in total control of the interview; that she
could speak or not speak as she saw fit. Corporal Gallina’s
administration of Miranda warnings to [Appellant] were sufficient
to effectively apprise [Appellant] of her right to remain silent.
[Appellant]’s claim to the contrary is without merit. Consequently,
the first exception to Grant’s deferral rule is not met in the instant
case.

Similarly, the second exception to Grant’s deferral rule is
likewise inapplicable. The second exception to Grant’s deferral
rule applies when a defendant seeks to litigate “multiple or prolix”
claims of counsel ineffectiveness. [Appellant] here has not
advanced multiple or prolix ineffective assistance claims. Further,
this exception requires that [Appellant] demonstrate “good cause”
for addressing the ineffectiveness claims during direct review. As
[Appellant]’s lone claim of trial counsel’s ineffectiveness has no
merit, and there is no impediment in any event to [Appellant]
bringing her ineffective assistance claim in a petition for post-

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conviction collateral review, [Appellant] has not demonstrated
good cause to waive Grant’s deferral rule and litigate her
ineffective assistance claims on direct appeal. Finally, this
exception requires a knowing, voluntary and intelligent waiver of
her right to file any PCRA claims following direct review. For the
reasons we discussed earlier, [Appellant] was not able or willing
to make this type of waiver, as she remained under the
misconception that the only waiver required was one that forfeited
only her right to raise the single ineffectiveness claim for which
she sought direct review. For all of these reasons, [Appellant] is
not entitled to invoke the second exception to Grant’s deferral
rule in order to obtain direct review of her allegation of
ineffectiveness against trial counsel. Consequently, [Appellant] is
not eligible for the relief she seeks.

This Honorable reviewing Court has held that “[e]ven in
cases where one of the two Holmes exceptions to Grant’s general
rule of deferral are seemingly present, it is solely within the trial
court’s discretion to entertain ─ or refuse to entertain ─ the
ineffectiveness claim.” Commonwealth v. Shick, 2019 WL
4955191 *14 (Pa. Super. 2019) [(en banc)], appeal denied, 229
A.3d 570 (Pa. 2020).

Trial Ct. Op. at 32-36 (some paragraph breaks added; some citations,

quotation marks, and emphases omitted).

We agree with the trial court’s well-reasoned opinion and affirm on its

basis while emphasizing the following. Contrary to Appellant’s argument, it is

evident from the record that her purported waiver of her right to file any PCRA

claims was not knowing and voluntary because it was based on Attorney

Gallen’s misinterpretation of the relevant case law. At the December 16,

2021, hearing, Attorney Gallen attempted to waive only one of Appellant’s

prospective claims ─ trial counsel’s ineffectiveness concerning her Miranda

statement ─ while asserting that she could bring up other PCRA claims at a

later date. See N.T., 12/16/21, at 10-11. When asked if counsel had any

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legal authority to support a hybrid claim, Attorney Gallen answered in the

negative. Id. at 11. Appellant still has not presented any case law to refute

the principle that an appellant’s waiver of PCRA rights encompasses the right

to file a PCRA in its entirety. See Baker, 72 A.3d at 668 (concluding

defendant did not make an express and knowing waiver of right to PCRA

review where defendant had been informed that “trial counsel’s specific

instance of ineffectiveness during direct review meant only that [defendant]

could not raise that issue again on collateral review, which [was] a clear

misstatement of the law.”) (emphasis in original).14 We discern that it was

not an abuse of discretion on the trial court’s part to find that Appellant did

not knowingly waive her PCRA rights. See Holmes, 79 A.3d at 577-78;

Baker, 72 A.3d at 668. As such, we agree with the trial court that none of

the exceptions apply, and Appellant’s ineffectiveness claim should not be

considered on direct appeal. Accordingly, we dismiss Appellant’s claim of

ineffectiveness without prejudice to raise her argument in a timely petition

under the PCRA.

____________________________________________

14 See also Holmes, 79 A.3d at 580 (“Unitary review should not be pursued
where it may compromise the fullness of the defendant's options for collateral
attack represented by the PCRA, absent an appropriate waiver. The more
involved and complicated the case, no doubt, the less likely it may be a
candidate to waive the defendant’s PCRA rights in order to secure unitary
review on post-verdict motions.”).

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Judgment of sentence affirmed. Appellant’s application to proceed pro

se denied.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/28/2022

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