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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES W. STEELE :
:
Appellant : No. 873 WDA 2022
Appeal from the PCRA Order Entered June 30, 2022
In the Court of Common Pleas of Elk County
Criminal Division at No(s): CP-24-CR-0000139-2016
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: July 25, 2023
Charles W. Steele (“Steele”) appeals from the order denying his petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant factual and procedural history can be summarized as
follows. In 2016, police charged Steele with numerous offenses in relation to
his sexual abuse of E.S., an eight-year-old female child. In August 2018,
Steele’s first trial resulted in a mistrial. Thereafter, Steele’s private counsel
petitioned to withdraw from representation, and the petition was granted
without objection.
Prior to the start of Steele’s second trial, jury selection was continued
and rescheduled on numerous occasions from December 2018 to April 2019.
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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As Steele was still unrepresented by counsel, jury selection was again
continued and rescheduled to June 10, 2019.
On May 30, 2019, Steele completed a written questionnaire regarding
his decision to waive counsel.2 Therein, Steele indicated that he did not
understand seven of the questions posed to him. See Questionnaire, 5/30/19,
at unnumbered 1-3. Specifically, Steele indicated that he did not understand
that: (1) if he waived his right to be represented by an attorney, he would still
be required to follow the Rules of Criminal Procedure; (2) there may be
defenses to the charges against him that he may not be aware of, but an
attorney would be; (3) if these defenses are not raised at trial they may be
permanently lost; (4) if his rights are not asserted within the time required
under the law, he may lose those rights; (5) if errors occur and are not timely
objected to or raised by him, those errors may be permanently lost; (6) he
would not be able to argue that he was improperly convicted because of the
ineffectiveness of counsel for any proceeding in which he represented himself;
(7) and he was voluntarily giving up his right to be represented by counsel.
The following day, the trial court conducted an on-the-record colloquy
during which Steele affirmatively represented to the trial court that he
understood that, if he were to waive his right to counsel and proceed pro se:
(1) he would “be bound by all the normal Rules of Criminal Procedure;” (2)
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2 Steele dated his signature on the questionnaire as May 31, 2019; however,
the completed questionnaire was filed on May 30, 2019.
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“there may be possible defenses to the charges that an attorney is again going
to be more likely to be able to identify and address than someone who is not
trained in the law;” (3) “that if those defenses are not asserted in a timely
fashion, they may be lost permanently;” (4) “there are a number of criminal
defenses that could be asserted, and if they are not timely asserted . . . can
be lost permanently;” (5) “there are other rights that, if not timely raised,
may be lost permanently.” N.T., 5/31/19, at 5-7. The trial court then
reviewed the questionnaire completed by Steele and noted that he had
answered some of the questions in the negative. Id. at 7. The trial court
explained that they had just gone over some of those questions, but
nevertheless proceeded to separately discuss each question to which Steele
had responded in the negative, and thereafter obtained additional affirmative
responses from Steele indicating that he understood each question and the
corresponding consequence of electing to proceed pro se. Id. at 7-11.
However, when the trial court asked Steele if he was voluntarily giving
up his right to be represented by an attorney, Steele answered in the negative.
Id. at 11. The trial court inquired what efforts Steele had made to secure
counsel and Steele responded that he submitted an application to the public
defender’s office, but it was denied because his income was too high. Id. at
11. Steele further indicated that, during the past two years, he had been
unemployed for ten months. Id. The court asked when the application was
denied, and Steele explained that he submitted the application “when we first
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went to trial.” Id. at 12. The court went on to explain that, if there had been
a material change in Steele’s income or the assets available to him, he could
reapply for representation from the public defender’s office, noting that “[i]t’s
ongoing. . . . even if today you told me I’m going to go forward and represent
myself, you have the ability tomorrow or at any time to either retain an
attorney or seek appointment of counsel.” Id. The trial court then advised
Steele that, prior to jury selection on June 10, 2019, Steele would have the
ability to either submit another application to the public defender’s office to
see if he was eligible, or he could hire his own counsel. Id. at 13. The court
indicated that, if Steele continued to represent his own interests, the court
would assign standby counsel for the upcoming jury selection. Id. at 14.
On June 10, 2019, the matter proceeded to jury selection at which
Steele represented himself with standby counsel in attendance. Trial of the
matter was scheduled for August 1 and 2, 2019.
On July 31, 2019, the day before trial was to begin, the trial court
conducted another on-the-record colloquy regarding Steele’s decision to
represent himself. Steele confirmed his understanding that he had an
absolute right to be represented by an attorney. See N.T., 7/31/19, at 4.
The court indicated that it was “not aware that you made that application to
the public defender’s office.” Id. Steele responded that he did, and that his
application was denied. Id. The trial court then indicated that it was unaware
whether Steele appealed that denial to the trial court to review his financial
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resources to determine whether he may be eligible. Id. Steele confirmed
that he had not done so but indicated that he did not know that he could do
so. Id. The court then continued to colloquy Steele regarding the risks and
consequences of proceeding pro se, and Steele affirmatively indicated on the
record his understanding to each such risk and consequence. Id. at 4-10.
Finally, the court inquired, “that’s your intent to represent your own interests
again with . . . standby counsel,” and Steele responded, “[c]orrect.” Id. at
10. Based on this colloquy, the court indicated that it “continues to find that
. . . Steele’s decision to represent himself is made knowingly, intelligently[,]
and voluntarily and that he fully understands his right to counsel and has
determined to represent his interests going forward.” Id. at 11. Accordingly,
the court granted Steele’s request to proceed pro se and appointed standby
trial counsel.
The matter proceeded to a jury trial at the conclusion of which the jury
convicted Steele of five counts each of involuntary deviate sexual intercourse
with a child less than thirteen years of age, aggravated indecent assault,
aggravated indecent assault a child less than thirteen years of age, indecent
assault of a child less than thirteen years of age, and corruption of minors.
On December 2, 2019, the trial court sentenced Steele to an aggregate term
of twenty to forty years in prison. Steele requested the appointment of
appellate counsel, and the trial court appointed appellate counsel. On August
21, 2020, this Court affirmed the judgment of sentence, and Steele did not
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seek further review by our Supreme Court. See Commonwealth v. Steele,
240 A.3d 187 (Pa. Super. 2020) (unpublished memorandum).
On May 3, 2021, Steele filed a timely pro se PCRA petition. Steele then
filed an amended pro se petition. The PCRA court appointed counsel who filed
a second amended petition. On February 1, 2022, the PCRA court conducted
a hearing at which the PCRA court noted, and all counsel agreed, that the sole
issue raised in Steele’s pro se petition, pro se amended petition, and counseled
second amended petition was the July 31, 2019 exchange between Steele and
the trial court regarding the appealability of the denial of Steele’s application
for representation from the public defender’s office. See N.T., 2/1/22, at 3-
4. At the hearing, the only exhibit that Steele sought to introduce was the
transcript of the July 31, 2019 hearing. See id. at 6. On June 30, 2022, the
PCRA entered a memorandum opinion explaining why Steele’s sole issue
warranted no relief, as well as an order denying Steele’s petition. Steele filed
a timely notice of appeal, and both he and the PCRA court complied with
Pa.R.A.P. 1925. Notably, in his concise statement, Steele raised the following
issue for our review:
Whether the PCRA court erred in denying [Steele’s] petition
for [PCRA r]elief because [Steele] did not knowingly, voluntarily,
nor intelligently waive his right to counsel at jury trial in this
matter on August 1, 2019 and August 2, 2019[,] where [Steele’s]
waiver of counsel was predicated on his erroneous belief that the
denial of his public defender application could not be appealed.
Concise Statement, 8/15/22.
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However, in his appellate brief, Steele raises the following issue for our
review:
Whether the trial court erred in finding [Steele] made a clear
and unequivocal waiver of counsel where [Steele] indicated he did
not understand several of the consequences of waiving counsel in
a May 30, 2019 questionnaire[,] and that lack of understanding
was not cured by the court prior to requiring [Steele] to proceed
to trial pro se?
Steele’s Brief at 5 (unnecessary capitalization omitted).
Initially, we must determine whether Steele preserved his issue for our
review. Our Supreme Court has ruled that when a trial court directs a
defendant to file a concise statement of matters complained of on appeal
pursuant to Rule 1925(b), any issues not raised in that statement are waived.
See Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998); see also
Pa.R.A.P. 1925(b)(3)(vii) (providing that “issues not included in the
[s]tatement . . . are waived”); Pa.R.A.P. 302(a) (providing that issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal).
Here, the trial court ordered Steele to file a concise statement pursuant
to Rule 1925(b). In his concise statement, Steele claimed that his decision to
waive his right to counsel was not knowing and voluntary because he was
unaware until the July 31, 2019 hearing that he could appeal to the trial court
a decision by the public defender’s office that his income was too high to
qualify for the appointment of counsel. As that was the sole issue raised in
the concise statement, that was the only issue addressed by the PCRA court
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in its Rule 1925(a) opinion. See PCRA Court Opinion, 9/27/22, at 1-2.
Indeed, the PCRA court explained:
The only error asserted on behalf of . . . Steele, is that the
court erred in determining that Steele had knowingly,
intelligently[,] and voluntarily waived his right to counsel. The
purported error is predicated solely on the equivocal responses of
Steele to the court’s inquiries of him on July 31, 2019. . . ..
In this case, Steele has not asserted any error in the court
having addressed any of the six factors set forth in Pa.R.Crim.P.
121(A)(2). Rather, it is the change in his response to the
court’s inquiry on July 31, 2019 regarding the ability to
challenge the denial of his public defender application on
which the purported error is centered.
PCRA Court Opinion, 9/27/22, at 1-2 (unnecessary capitalization omitted,
emphasis added).
However, as indicated above, Steele raised an entirely different question
for our review in his Statement of Questions Involved. See Steele’s Brief at
5. Therein, he claimed that his decision to waive his right to counsel was not
knowing and voluntary because he responded in the negative to several
questions in the waiver of counsel questionnaire executed on May 30, 2019,
and that the trial court’s colloquy on May 31, 2019 was insufficient to
overcome his negative answers in the written colloquy.
As the issue now presented for this Court’s review—regarding the effect
of Steele’s negative responses in his written waiver of counsel colloquy—was
not raised in Steele’s concise statement, he failed to preserve it for our review.
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See Lord, 719 A.2d at 308; see also Pa.R.A.P. 1925(b)(3)(vii); Pa.R.A.P.
302(a). Accordingly, the issue is waived.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2023
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3 Even if Steele had preserved the issue for our review, we would have
concluded that it lacked merit, as the trial court discussed on the record each
of the questions in the waiver of counsel questionnaire to which Steele
responded in the negative, and Steele affirmatively indicated to the trial court,
on multiple occasions, that he understood each of the questions and the
corresponding consequences of proceeding pro se. See N.T., 5/31/19, at 5-
11; see also N.T., 7/31/19, at 4-11.
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