Com. v. Eakin, S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN G. EAKIN :
:
Appellant : No. 528 WDA 2019
Appeal from the Judgment of Sentence Entered April 11, 2019
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000647-2017
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 2, 2020
Appellant, Steven Eakin, pro se, appeals from the aggregate judgment
of sentence of eight to twenty-four months, less one day, of confinement,
which was imposed after his jury trial conviction for driving under the influence
of alcohol, highest rate of alcohol, second offense, graded as a first-degree
misdemeanor.1 We vacate and remand for further proceedings.
The facts underlying this appeal are as follows, taken from the trial court
opinion:
On August 11, 2017, Chief Edward Sharp of the Polk
Borough Police Department observed Defendant traveling
east on Georgetown Road in the westbound lane. Chief
Sharp observed Defendant driving in this manner for about
one-half of a mile, and initiated a traffic stop at about 8:56
PM. Chief Sharp immediately recognized Defendant, and
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(c).
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called another officer to conduct the traffic stop because he
and the Defendant had a personal and professional
relationship. Sergeant Alan Heller, an officer with the Polk
Borough Police Department, arrived to continue the traffic
stop. After determining Defendant exhibited indicators of
DUI, he was placed under arrest and asked to submit to a
blood test. Defendant eventually consented, and Defendant
was taken to UPMC Northwest, where Defendant’s blood was
drawn around 10:00 PM.
TCO 6/5/2019 at 1.
Appellant was charged with DUI, general impairment and highest rate
of alcohol.2 Appellant’s preliminary hearing was scheduled for October 11,
2017. The preliminary hearing was continued for Appellant to retain legal
representation. On October 18, 2017, Appellant’s case was held for court in
absentia, as he failed to appear for his scheduled preliminary hearing.
Thereafter, at hearings regarding the bench warrant and bail, Appellant
appeared pro se.
On December 28, 2017, Appellant, pro se, filed an omnibus pre-trial
motion for relief arguing that statements he made to police should be
suppressed, the blood alcohol report should be suppressed, the information
should be quashed, and the Venango County District Attorney’s Office should
be recused. On February 27, 2018, the trial court held a hearing on
Appellant’s omnibus pre-trial motion. Appellant appeared pro se at this
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2 75 Pa.C.S. §§ 3802(a)(1), and (c).
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hearing.3 On May 17, 2018, the trial court held an additional hearing, during
which Appellant presented evidence relevant to his omnibus pre-trial motion.
Again, Appellant appeared pro se at this hearing. The Commonwealth and
Appellant submitted post-hearing briefs. On September 28, 2018, the trial
court filed an order, dismissing Appellant’s omnibus pre-trial motion, as well
as its opinion and supporting findings of fact. On February 8, 2019, Appellant
signed a waiver of counsel form. The February 8, 2019 waiver of counsel form
indicated that the trial court conducted an “on-the-record colloquy” with
Appellant and determined that Appellant made a “knowing, voluntary and
intelligent waiver of the right to be represented by legal counsel and thereby
elects to be self-represented.” Waiver of Counsel, 2/8/19. On February 15,
2019, Appellant proceeded to a jury trial, pro se. Appellant was found guilty
of driving under the influence. On April 11, 2019, the trial court imposed
judgment of sentence. On April 11, 2019, Appellant filed this timely direct
appeal.4
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3 There appears no indication in the certified record that Appellant was advised
of his right to counsel pursuant to Pa.R.Crim.P. 121(C), nor that there was a
valid, written, waiver or colloquy to ensure that Appellant’s waived the right
to be represented by counsel. This is discussed further below.
4On April 15, 2019, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal (Rule 1925(b) statement). On
April 17, 2019, Appellant filed his Rule 1925(b) statement. On June 5, 2019,
the trial court filed its opinion pursuant to Pa.R.A.P. 1925(a).
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Appellant presents the following issues for our review:
1. Whether the Suppression Court committed an error of
law and abused its discretion by failing to grant
appellant’s Motion to Quash the Information for want of
lawful police jurisdiction.
2. Whether the Suppression Court committed an error of
law and abused its discretion by failing to suppress
statements made by the appellant at the time of the
traffic stop when the police officer failed to provide a
Miranda[5] warning, and by failing to suppress the blood
test results for the police officer’s failure to provide the
required O’Connell[6] warning at the time of the blood
draw.
Appellant’s brief at 6 (trial court answers omitted).
Before we can address the merits of Appellant’s claims, this Court must
first address whether Appellant properly waived his right to counsel. See
Commonwealth v. Johnson, 158 A.3d 117, 122 (Pa. Super. 2017) (stating
that this Court has a duty to review whether appellant properly waived his
right to counsel prior to his suppression hearing even though appellant did not
assert the issue on appeal); See also Commonwealth v. Murphy, 214 A.3d
675, 679 (Pa. Super. 2019) (reviewing the issue of whether appellant waived
his right to counsel at a violation of probation hearing sua sponte).
The Sixth Amendment to the Federal Constitution states: “In all criminal
prosecutions, the accused shall enjoy ... the Assistance of Counsel for his
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5 Miranda v. Arizona, 384 U.S. 436 (1966).
6Commonwealth of Pennsylvania, DOT v. O’Connell, 555 A.2d 873 (Pa.
1989).
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defense.” U.S. Const. amend. VI. Article I, Section 9 of the Pennsylvania
Constitution states: “In all criminal prosecutions the accused hath a right to
be heard by himself and his counsel....” Pa. Const. Art. I, § 9. See
Commonwealth v. McAleer, 748 A.2d 670, 673 (Pa. 2000). “The right to
counsel extends not only to certain summary proceedings, at trial, guilty plea
hearings, sentencing, but also to every critical stage of a criminal proceeding.”
Commonwealth v. Fill, 202 A.3d 133, 138 (Pa. Super. 2019) (citations
omitted). The suppression hearing is a critical stage of the criminal
proceedings and waiver of counsel cannot be found on a silent record.
Johnson, 158 A.3d at 122 (citations omitted).
When 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).
In Johnson, 158 A.3d at 120-23, appellant signed a waiver of counsel
at the magisterial district court, but nothing in the record indicated that
appellant ever waived his right to counsel on the record before the trial court
conducted the suppression hearing. Johnson proceeded pro se at the
suppression hearing but subsequently retained counsel for his trial. Id. This
Court concluded,
[a]s a suppression hearing is a critical stage and Appellant
was not informed of his rights on the record, we are
constrained to find that Appellant did not knowingly,
voluntarily, and intelligently waive his right to counsel. In
order to proceed at the suppression hearing, the trial court
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was required to determine, on the record, whether Appellant
knowingly, voluntarily, and intelligently waived his right to
counsel. We hold that the trial court’s failure to colloquy
Appellant of his constitutional right to counsel prior to the
suppression hearing requires us to vacate the judgment.
Appellant is entitled to a new suppression hearing and a new
trial.
Johnson, 158 A.3d at 123. Pursuant to Johnson, 158 A.3d 117, an on the
record colloquy, in accordance with Pa.R.Crim.P. 121(C), is required as to the
defendant’s knowing, voluntary and intelligent waiver of his right to be
represented by counsel at all critical stages of a criminal proceeding, including
the suppression hearing.
Our review of the record reveals there is nothing in the record indicating
that Appellant waived his right to counsel on the record as required by
Pennsylvania Rule of Criminal Procedure 121(C) before his suppression
hearing.7 Although Appellant properly waived his right to counsel before his
jury trial, that does not validate the suppression hearing. “[O]nce a defendant
has made a competent waiver of counsel, that waiver remains in effect
through all subsequent proceedings in that case absent a change of
circumstances.” Johnson, 158 A.3d at 122 (quoting Commonwealth v.
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7 On June 30, 2020, this Court remanded to the trial court to determine if an
on the record colloquy was performed, prior to the February 27, 2018
suppression hearing, pertaining to Appellant’s knowing, voluntary and
intelligent waiver of his right to be represented by counsel. The trial court
diligently investigated the matter and responded to this Court, by letter dated
September 24, 2020, that although there were detailed discussions about “the
perils of self-representation at several hearings prior to the February 27, 2018
hearing,” it was unable to locate a formal colloquy. See Trial Court Letter,
9/24/20.
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Phillips, 141 A.3d 512, 521 (Pa. Super. 2016)). We, therefore, vacate the
judgment of sentence and remand for further proceedings. See Johnson,
158 A.3d at 123.
Judgment of sentence vacated. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/02/2020
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