Com. v. Lovelace, T. ( 2019 )

J-S49024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TEKEESHA LARAE LOVELACE
Appellant No. 543 EDA 2019
Appeal from the Order Entered December 28, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0001288-2018
BEFORE: BENDER, P.J.E., STABILE, J. and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 11, 2019
Appellant, Tekeesha Larae Lovelace, appeals from her judgment of
sentence of 11½—23 months’ imprisonment for aggravated assault, resisting
arrest and driving under suspension.1 We remand this case for the trial court
to conduct a hearing concerning whether Appellant knowingly, intelligently
and voluntarily waived her right to appellate counsel.
During a traffic stop, police officers attempted to arrest Appellant based
on suspicion that she was driving while under the influence of a controlled
substance. Appellant became combative and struck the officers. The jury
found her guilty of the aforementioned charges. On November 30, 2018, the
trial court imposed sentence.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702, 5104 and 75 Pa.C.S.A. § 1543.
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At the conclusion of the sentencing hearing, Appellant’s attorney stated
that Appellant wanted to handle post-sentence motions and the appeal
herself. N.T., 11/30/18, at 46. The court asked whether counsel had reviewed
any colloquy with Appellant relating to her right to appellate counsel. Id.
Counsel replied that he did not have a colloquy but could get one to the clerk.
Id. The court stated to Appellant:
[Counsel is] going to go over your rights as far as the deadlines
for filing your appeal and your post-sentences motions and all of
that. He will give you a copy of that in writing. So I’m going to
direct that you sit down with him and go through all of that
because I want to make sure that you understand what your rights
are. If you have any questions about that that you feel he can’t
answer, I’m happy to come back here in court and answer any
questions you have on that. So I will give you the opportunity to
spend the time with him. As I said, it’s a preprinted form.
Everyone goes through that. It’s not like he has made it up or
anything like that. This is the standard form that everyone goes
through so that we make sure you understand your rights and you
don’t miss any deadlines. So I’m going to direct that you sit with
him, go through that, and then, as I said, if you are uncomfortable
with his advice and you have a question about anything
concerning that, I’ll come back and I’ll try to answer any questions
that you have . . .
Id. at 47. The court entered an order permitting counsel to withdraw his
appearance. The record, however, does not include any written form in which
Appellant waived appellate counsel or any hearing transcript in which
Appellant waived counsel after being apprised of the rights that she was giving
up.
Appellant did not file post-sentence motions, but she did file a timely
pro se notice of direct appeal. She also filed a motion for leave to proceed in
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forma pauperis, which the trial court granted. Both Appellant and the trial
court complied with Pa.R.A.P. 1925. The court’s Rule 1925 opinion
recommended dismissal of Appellant’s appeal due to the vagueness of her
Pa.R.A.P. 1925 statement.
In this Court, Appellant filed a pro se brief in this appeal raising three
issues:
I. Whether the Commonwealth had sufficient evidence to establish
a prima facie case?
II. Abuse of discretion/authority
III. Was the verdict against the weight of the evidence and the
law?
Appellant’s Brief at 7.
We do not reach the issues presented in Appellant’s brief, because there
is no colloquy in the record relating to waiver of Appellant’s right to appellate
counsel on direct appeal. It is well settled that “[i]n addition to the accused’s
absolute right to a direct appeal of his sentence, the accused has the right to
assistance of court-appointed counsel to pursue such appeal, if indigent.”
Commonwealth v. Bronaugh, 670 A.2d 147, 149 (Pa. Super. 1995). “While
an accused possesses such rights, he also has the ability to waive his right to
counsel and to an appeal.” Id. “The effective waiver of such a right must be
an intentional relinquishment or abandonment of a known right or privilege[,
and] no waiver can be presumed where the record is silent.” Id.-3-
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Pursuant to Bronaugh, we cannot overlook the absence of any colloquy
establishing that Appellant knowingly and intelligently waived her right to
counsel after being informed of the rights and privileges that she was
relinquishing. We conclude that the proper course of action is to remand this
case for an on-the-record colloquy, within thirty days of this memorandum, in
which the trial court ascertains whether Appellant’s decision to waive counsel
is knowing, intelligent and voluntary. Cf. Commonwealth v. Robinson, 970
A.2d 455, 460 (Pa. Super. 2009) (noting in context of PCRA appeal that
“regardless of how unambiguous a defendant’s [desire to proceed pro se] may
be, without a colloquy the court cannot ascertain that the defendant fully
understands the ramifications of a decision to proceed pro se and the pitfalls
associated with his lack of legal training. Thus, a defendant cannot knowingly,
voluntarily, and intelligently waive counsel until informed of the full
ramifications associated with self-representation”). If Appellant confirms
following a proper colloquy that she would like to proceed pro se, and the trial
court is satisfied that her decision to waive counsel is knowing, voluntary, and
intelligent, the court shall enter an order permitting Appellant to represent
herself. If Appellant indicates that she wants counsel to represent her, or if
the court determines that her decision to waive counsel is not knowing,
voluntary, and intelligent, the court shall enter an order appointing counsel to
represent her on direct appeal.
Case remanded with instructions. Panel jurisdiction retained.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/19
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