J-A12027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIAN NAVARRO :
:
Appellant : No. 812 EDA 2022
Appeal from the Judgment of Sentence Entered January 7, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002844-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIAN NAVARRO :
:
Appellant : No. 813 EDA 2022
Appeal from the Judgment of Sentence Entered January 7, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002845-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIAN NAVARRO :
:
Appellant : No. 814 EDA 2022
Appeal from the Judgment of Sentence Entered January 7, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002846-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-A12027-23
:
v. :
:
:
JULIAN NAVARRO :
:
Appellant : No. 815 EDA 2022
Appeal from the Judgment of Sentence Entered January 7, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002847-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIAN NAVARRO :
:
Appellant : No. 816 EDA 2022
Appeal from the Judgment of Sentence Entered January 7, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002848-2019
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED JUNE 20, 2023
Appellant Julian Navarro appeals from the judgment of sentence
following his convictions of five counts of possession of a controlled substance
with intent to deliver (PWID). On appeal, Appellant argues that he did not
voluntarily, knowingly, and intelligently waive his right to counsel. Appellant
also raises claims concerning the sufficiency and weight of the evidence and
the discretionary aspects of his sentence. After careful review, we vacate the
judgment of sentence and remand for further proceedings consistent with this
memorandum.
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The trial court summarized the procedural history of this matter as
follows:
Appellant was charged with five counts of [PWID], 35 P.S. § 780-
113(a)(30), all of which are ungraded felonies. Appellant was
initially represented by Attorney Steven Mills. . . .
* * *
[In March of 2020, while criminal trials were suspended for the
COVID-19 pandemic,] Appellant filed a pro se handwritten letter
requesting [the] removal of Attorney Mills as his counsel. The
[trial court] received that letter on March 19, 2020. The same
day, Attorney Mills filed a petition to withdraw as counsel. The
[trial court] granted that petition on April 20, 2020. On May 15,
2020, Kathryn Smith, Esq.[,] of the Lehigh County Public
Defender’s Office entered her appearance on Appellant’s behalf.
However, Attorney Smith petitioned to withdraw on August 10,
2020. Following a hearing, her petition was granted and Appellant
proceeded pro se.
Appellant subsequently filed several pro se motions including a
[Pa.R.Crim.P.] 600 motion, a motion to suppress physical
evidence, a petition for disclosure of the confidential informant,
and a petition for habeas corpus. The [trial court] held a hearing
on the Rule 600 motion on October 9, 2020[,] and denied it by
order entered November 5, 2020. On November 24, 2020, the
[trial court] held a hearing on all outstanding pretrial motions and
took them under advisement. The [trial court] entered an order
denying them on December 4, 2020.
A status conference was conducted on February 10, 2021.
Appellant expressed an interest in entering a plea, but then
expressed discomfort with the proposed plea agreement. Out of
an abundance of caution and so as not to become involved in plea
negotiations, the [trial court] subsequently appointed Robert
Sletvold, Esq.[,] as counsel for Appellant. After numerous
additional continuances, a jury trial was held on November 16-17,
2021. Attorney Sletvold served as stand-by counsel for Appellant.
At the close of the trial, Appellant was convicted on each of the
five criminal informations. A presentence investigation (PSI)
report was ordered and sentencing was scheduled for January 7,
2022.
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Appellant filed a pro se [Post Conviction Relief Act1] petition on
December 20, 2021 against Attorney Sletvold. The [trial court]
dismissed it without prejudice on December 28, 2021 based on
the filing being premature.
On December 23, 2021, Joseph Schultz, Esq.[,] entered his
appearance on Appellant’s behalf. Attorney Schultz subsequently
submitted a detailed sentencing memorandum which included
letters from Appellant’s family members.
The sentencing hearing was held on January 7, 2022. The [trial
court] considered the PSI, sentencing guidelines, and the
submissions contained in the sentencing memorandum. The [trial
court] sentenced Appellant to twelve to twenty-four years of
incarceration.
Appellant filed [counseled] “Defendant’s Post Setence (sic)
Motions and Motion for Reconsideration of Sentence” on January
16, 2022. The [trial court] denied those motions on February 23,
2022.
Trial Ct. Op., 8/8/22, at 5-7 (footnotes omitted, formatting altered).
Appellant filed a timely notice of appeal and a court-ordered Rule
1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing
Appellant’s claims.
On appeal, Appellant raises the following issues for our review:
1. Whether [] Appellant was deprived of his right to counsel and
did not knowingly, voluntarily or intelligently waive his right in
accordance with Commonwealth v. Grazier, [713 A.2d 81
(Pa. 1998)?] At the motions hearing on November 24, 2020,
[] Appellant proceeded pro se, despite being entitled to
counsel. Additionally, there is no record to suggest that the
trial court conducted a colloquy to ensure that [] Appellant
knowingly, voluntarily, and intelligently waived his right to
counsel.
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
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2. Whether there was insufficient evidence to sustain []
Appellant’s convictions for the five charges of [PWID?]
3. Whether the jury’s verdict of guilty for five counts of [PWID]
was against the weight of the evidence[?]
4. Whether the [trial] court’s aggregate[] sentence of 12 to 24
years of incarceration was an abuse of discretion which did not
adequately consider [] Appellant’s mitigating factors and was
greater than the 10-to-20-year sentence of incarceration which
was recommended by the Lehigh County Adult Probation
Department[?] Especially when, in justifying its upward
departure from the sentencing guidelines, the [trial] court
stated that it considered the impact of fentanyl, despite the
sentencing guidelines already recommending increased offense
gravity scores for crimes involving fentanyl.
5. Whether the [trial] court’s decision to impose consecutive
sentences for the five counts of [PWID] was an abuse of
discretion[?]
Appellant’s Brief at 11-12 (some formatting altered).
In his first issue, Appellant argues that he did not knowingly, voluntarily,
or intelligently waive his Sixth Amendment right to counsel. Id. at 18. In
support, Appellant refers to the trial court’s on-the-record exchange with
Appellant at the suppression hearing. Id. at 21-22. Appellant argues that
“[e]ven if this [C]ourt considers [the] exchange a ‘colloquy,’” it was
“constitutionally deficient and a violation of Pa.R.Crim.P. 121” and “does not
cover four of the essential components necessary in [a] colloquy pursuant to
Grazier.” Id. at 23-24. Appellant also contends that although he “was
ultimately represented by counsel at his trial, he was deprived of that right at
his suppression hearing,” which was a critical stage of the criminal proceedings
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and constitutes structural error. Id. at 25. Therefore, Appellant requests that
we remand the case for further proceedings. Id. at 35-36.2
“Both the right to counsel and the right to self-representation are
guaranteed by the Sixth Amendment to the United States Constitution and by
Article I, Section [9] of the Pennsylvania Constitution. Deprivation of these
rights can never be harmless.” Commonwealth v. Johnson, 158 A.3d 117,
121 (Pa. Super. 2017) (citation omitted).
Pennsylvania courts have recognized that “[a] criminal defendant’s right
to counsel under the Sixth Amendment includes the concomitant right to waive
counsel’s assistance and proceed to represent oneself at criminal
proceedings.” Commonwealth v. Green, 149 A.3d 43, 56 (Pa. Super. 2016)
(citing, inter alia, Faretta v. California, 422 U.S. 806 (1975)). However,
although a defendant’s right to self-representation is guaranteed, it is not
absolute. Commonwealth v. Brooks, 104 A.3d 466, 474 (Pa. 2014). To
exercise the right to self-representation, a “defendant must demonstrate that
he knowingly, voluntarily and intelligently waives his right to counsel.” Id.
(citation omitted); see also Pa.R.Crim.P. 121(A)(2).
This Court has explained:
____________________________________________
2 In its brief, the Commonwealth maintains that because Appellant failed to
include the August 10, 2020 transcript in the certified record, his first issue is
not reviewable. Commonwealth’s Brief at 9. We note, however, that the
August 10, 2020 transcript was included in a supplement to the certified
record.
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In order to make a knowing and intelligent waiver, the individual
must be aware of both the nature of the right and the risks and
consequences of forfeiting it.
Moreover, the presumption must always be against the waiver of
a constitutional right. Nor can waiver be presumed where the
record is silent. The record must show, or there must be an
allegation and evidence which shows, that an accused was offered
counsel but intelligently and understandingly rejected the offer.
Thus, for this Court to uphold such a waiver, the record must
clearly demonstrate an informed relinquishment of a known right.
Commonwealth v. Phillips, 93 A.3d 847, 852 (Pa. Super. 2014) (citations
omitted and formatting altered).
Where a defendant seeks to waive his right to counsel, Rule 121 of the
Pennsylvania Rules of Criminal Procedure sets forth the following
requirements:
To ensure that the defendant’s waiver of the right to counsel is
knowing, voluntary, and intelligent, the judge . . . 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
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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 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.
Pa.R.Crim.P. 121(A)(2). Rule 121 further requires that, “[w]hen 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.” Pa.R.Crim.P. 121(C).
This Court has explained:
Failing to conduct an on the record colloquy pursuant to Rule
121(C) before allowing a defendant to proceed pro se constitutes
reversible error. Once federal constitutional rights are involved,
and once it is clear . . . a particular defendant did not exercise
those rights, our inquiry must be whether there was a valid waiver
of those constitutional rights. Furthermore, [a] waiver cannot be
presumed [from] a silent record.
The inherent importance of the right to counsel justifies its
overwhelming protection and the rigorous requirements necessary
to find waiver.
* * *
A judge’s thorough inquiry into the accused’s appreciation of both
the right to counsel and the right to represent oneself must be
used in certain summary proceedings, at trial, guilty plea
hearings, sentencing, and every critical stage of a criminal
proceeding. A critical stage in a criminal proceeding is
characterized by an opportunity for the exercise of judicial
discretion or when certain legal rights may be lost if not exercised
at that stage.
Johnson, 158 A.3d at 121-22 (citations omitted, formatting altered).
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In the instant case, the record reflects that the trial court convened a
hearing on Attorney Smith’s motion to withdraw as counsel on August 10,
2020. At the hearing, the following exchange occurred between Appellant and
the trial court:
THE COURT: You had two bites at the apple, a paid [lawyer] and
a free [lawyer], and if you don’t like Attorney Smith to represent
you, as I said, you’re the lawyer.
Now, I don’t think you’re trained as a lawyer, and I don’t think
you know all the legal arguments and defenses to be able to offer
in a trial of each one of these cases if we went that far; is that
correct?
[Appellant]: Correct.
THE COURT: How old are you?
[Appellant]: 27.
THE COURT: What was the highest level of school you’ve
completed?
[Appellant]: High school graduate.
THE COURT: What kind of job did you have before you got locked
up?
[Appellant]: I was always locked up.
THE COURT: Since the age of 18?
[Appellant]: No, well, mainly.
THE COURT: So you sound like an intelligent person. You were
able to converse here today. And I think you understand what’s
going on here.
[Appellant]: Yes, sir.
THE COURT: But that doesn’t mean you know everything that
Attorney Smith, who is highly respected by the [trial court] in her
representation of you, whether it’s for purposes of crafting of a
guilty plea, or representing you at trial, or offering arguments at
sentencing.
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[Appellant]: Right.
THE COURT: So you have some choices to really think through
here. I know Attorney Smith has said she thinks the two of you
are friendly enough, but that you don’t have confidence in her.
And she thinks it’s gotten to a point where it’s not a healthy
attorney-client relationship, but I think you need to think very,
very carefully about whether you want to proceed with asking me
to have her withdraw as your lawyer because, as I said, I’m not
here for the purpose of just keeping throwing lawyers at you to
see if you like that, does this shoe fit, does that shoe fit, not like
that.
So the question really for you is, do you want to proceed with your
allegations of ineffectiveness with Attorney Smith such that I feel
compelled to grant her motion to withdraw as your lawyer?
[Appellant]: Yes.
THE COURT: Meaning you want to be your own lawyer?
[Appellant]: Until I can find another lawyer, paid lawyer.
THE COURT: That doesn’t exist forever, either. You get a certain
-- I’ll give you a trial date. And if you come in for the date of trial
saying I need more time, that’s not going to happen.
[Appellant]: Okay.
THE COURT: I’m giving you full warning and full disclosure as to
what you are going to be required to do to get a lawyer. And if
you come back to me and say I can’t afford a lawyer, I need you
to appoint me a new one, not going to happen. This is not a game.
...
N.T. Pretrial Hr’g, 8/10/22, at 13-17.3
At the conclusion of the hearing, the trial court granted Attorney Smith’s
motion to withdraw. At that time, the trial court explained:
____________________________________________
3The remainder of the August 10, 2020 transcript included discussion of the
merits of Appellant’s Rule 600 petition and administrative scheduling matters.
See id. at 17-22.
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I’m not appointing Attorney Smith as standby counsel as happens
in other cases. I’m not preventing you from filing a motion to ask
for her to be appointed standby counsel, and I’ll hear you out on
that. But I have to express to you, you are running a great risk
by coming in here without a lawyer, especially on [September 17.]
And I’m not going to continue to indulge a request to postpone
your matter just so you can have more time. You and your family
or whoever needs to start actively working towards finding counsel
if that’s what you wish.
Id. at 22.
On November 24, 2020, the trial court held a hearing on Appellant’s
omnibus pretrial motions. At that time, Appellant was not represented by
counsel. After the Commonwealth requested that the trial court conduct an
on-the-record colloquy to determine whether Appellant had waived his right
to counsel, the following exchange occurred:
THE COURT: Now, you are without counsel today [Appellant]; is
that correct?
[Appellant]: That’s correct.
THE COURT: All right. And how old are you, [Appellant]?
[Appellant]: I’m 27 years old.
THE COURT: What’s the highest level of school you’ve completed?
[Appellant]: High school graduate.
THE COURT: And are you under the care of a doctor for any
medical or mental health condition?
[Appellant]: No.
THE COURT: Have you had any drugs or alcohol of any type in
the last three days?
[Appellant]: No.
THE COURT: Within the first document that was received by the
clerk’s office on September the 4th – it’s actually dated August
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27th – you filed a motion to suppress physical evidence. Can you
explain for [Assistant District Attorney] Zampogna and myself
what it is you are seeking to have suppressed from presentation
at trial?
N.T. Pretrial Hr’g, 11/24/20, at 4-5.4
In its Rule 1925(a) opinion, the trial court explained:
During the hearing on [August 10, 2020,] where the [trial court]
considered Appellant’s letter asserting Attorney Smith’s alleged
ineffectiveness, as well as Attorney Smith’s motion to withdraw as
counsel, the [trial court] reviewed the status of the case as well
as a plea offer tendered by the Commonwealth which substantially
capped the [trial court’s] discretion pertaining to sentencing
options. The [trial court] reviewed the sentencing range at issue,
as well as Appellant’s history with attorneys in the case up to that
point. Appellant requested that Attorney Smith be withdrawn
from the case. The [trial court] explained to Appellant that if that
request was granted, his options would be to proceed pro se or to
retain private counsel. The [trial court] inquired into Appellant’s
age, education, and work experience. Appellant indicated he
wished to represent himself until he could find private [counsel].
Based on this discussion, the [trial court] granted Attorney
Smith’s motion to withdraw[.] The [trial court] cautioned
Appellant that his interest in terminating the attorney-client
relationship with Attorney Smith would not serve as a basis to
further delay the proceedings, and that if he did not retain private
counsel prior to the next hearing, he would represent himself. . .
* * *
Appellant had private counsel, and after private counsel was
granted leave to withdraw, Appellant was given a public defender.
Appellant argued the public defender was ineffective based on her
inability to see him, despite tacitly acknowledging this inability
was not her fault and instead stemmed from the COVID-related
precautions in place at the time. He expressed a desire to retain
a different private attorney. The [c]ourt strongly admonished him
that while his request to do so would be respected, if he appeared
at the hearing without a lawyer, he would be representing himself.
____________________________________________
4 The remainder of the transcript depicts a discussion of the merits of
Appellant’s pretrial motions and scheduling matters. See id. at 5-17.
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Appellant did not appear with counsel despite ample opportunity
to secure counsel and despite the warning that his election against
securing counsel would carry with it the consequence [that he]
would represent himself. As a result, Appellant represented
himself for the omnibus pretrial motion hearing.[fn8] Based on the
record, there is not any basis upon which Appellant is entitled to
relief stemming from his pro se representation at the pretrial
hearing.
The [c]ourt notes that the outcome of the hearing did
[fn8]
not materially impact the ultimate resolution of the case.
Appellant argued that items were seized during two traffic
stops, one on April 4, 2019 and a second on April 23, 2019.
Appellant was the driver during the first stop and a
passenger during the second. There was not any evidence
that anything was seized during these stops. Consequently,
there was not anything to suppress. Appellant also sought
disclosure of the identity of the confidential informant. A
defendant seeking disclosure of the identity of a confidential
informant has an initial burden of demonstrating that the
informant’s identity is material to a defense, such as
mistaken identity. There was not any evidence at either the
hearing or the jury trial tending to support or advance a
defense of mistaken identity or any other defense for which
disclosure would be necessary. Lastly, Appellant filed a
habeas petition asserting the Commonwealth failed to
present a prima facie case. The [c]ourt denied the petition
as untimely. Moreover, even if the [c]ourt erred with
respect to this hearing, errors at a preliminary hearing
concerning the sufficiency of the evidence are harmless as
a matter of law if the defendant is convicted at trial.
Trial Ct. Op. at 12-13.
Based on the record before us, we cannot conclude that Appellant’s
waiver of counsel was voluntary, knowing, or intelligent. See Phillips, 93
A.3d at 852. The trial court’s on-the-record colloquy does not reflect that
Appellant understood: (1) that he had the right to be represented by counsel;
(2) the nature and elements of the charges against him; (3) the permissible
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range of sentences and/or fines for the charges against him; (4) the fact that
as a pro se defendant, Appellant would be held to the same procedural rules
as counsel and that counsel would be familiar with those rules; (5) there may
defenses and/or rights available that would be lost if not raised in a proper
and/or timely manner. See Pa.R.A.P. 121(A)(2), (C); Phillips, 93 A.3d at
852.
Although the trial court concluded that Appellant was not entitled to
relief based on his self-representation at the omnibus pretrial hearing, it is
well settled that a suppression hearing is a critical stage of the criminal
proceedings. See Johnson, 158 A.3d at 122 (noting that a suppression
hearing constitutes “a critical stage requiring judicial inquiry into the
defendant’s right to counsel” (citation omitted)). Further, because the
deprivation of a defendant’s right to counsel “can never be harmless,” see id.
at 121 (citation omitted), we reject the trial court’s conclusion that the
outcome of the omnibus pretrial hearing “did not materially impact the
ultimate resolution of the case.” See Trial Ct. Op. at 13, n.8.
For these reasons, because we conclude that Appellant was deprived of
his Sixth Amendment right to counsel, we are constrained to vacate
Appellant’s judgments of sentence and the trial court’s order denying
Appellant’s omnibus pretrial motions. We remand this case for further
proceedings consistent with this memorandum.5
____________________________________________
5 In light of our disposition, we need not reach the merits of Appellant’s
remaining claims, as they are now moot.
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Judgment of sentence vacated. Order denying Appellant’s omnibus
pretrial motions vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2023
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