Com. v. Pou, C.

J-S25039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES WAYNE POU
Appellant No. 1515 WDA 2015
Appeal from the PCRA Order September 17, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002742-2013
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 12, 2016
Charles Wayne Pou (“Appellant”) appeals pro se from the order
entered in the Erie County Court of Common Pleas, which dismissed his
petition filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1
For the reasons that follow, we vacate the order denying Appellant’s PCRA
petition and remand to the PCRA court for an evidentiary hearing.
The relevant facts and procedural history of this appeal are as follows.
On July 25, 2013, Appellant was arrested and charged with 18 offenses
related to his involvement in an armed robbery of a home on July 3, 2013.
He and two other males allegedly pointed a gun at a one-year-old child while
they robbed the family’s home in their presence.
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1
42 Pa.C.S. §§ 9541-9546.
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On October 8, 2013, Appellant’s court appointed counsel, Keith H.
Clelland, Esq., filed a motion to withdraw representation. The motion
alleged that he and Appellant engaged in an argument at a preliminary
hearing conducted on September 4, 2013. The motion alleged Appellant
insisted Attorney Clelland call co-defendant Robert Turner to testify, but
Attorney Clelland told Appellant he could not call Turner to testify. Appellant
then filed several pro se motions asserting his counsel’s ineffectiveness. On
October 17, 2013, the court denied Attorney Clelland’s motion to withdraw.
On October 26, 2013, the court conducted an omnibus pretrial motion
hearing at which Attorney Clelland again requested to withdraw
representation, and Appellant expressed his dissatisfaction with counsel and
his belief that there was a conflict between them. The court again denied
the motion to withdraw.
On January 8, 2014, Appellant filed a pro se request for new counsel,
and several other pro se motions, all of which the clerk of courts forwarded
to Attorney Clelland. Appellant filed a complaint against Attorney Clelland
with disciplinary counsel. On January 29, 2014, Appellant wrote a letter
indicating he would like to represent himself.
On February 11, 2014, the first day of his jury trial, Appellant again
expressed his desire to represent himself. The trial court then conducted
the following colloquy:
THE COURT: Do you wish to represent yourself,
[Appellant]?
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[APPELLANT]: Yes, I do, Your Honor.
THE COURT: You have a right to do so.
[APPELLANT]: Yes, yes, yes, I do.
THE COURT: All right. Do you want to go over the waiver
with him?
[PROSECUTOR]: … I’m with the District Attorney’s office
and I am the prosecuting attorney of your case. What you
have before you is a right to counsel waiver. I’ve filled out
you name and docket number. I’ve signed and dated this
form. I’m going to read these questions. Please answer
yes or no loud enough so our court reporter can hear you
and I’ll mark down your answers. Do you understand
that?
[APPELLANT]: I see it.
[PROSECUTOR]: Okay, I mean, you understand what I
just told you?
[APPELLANT]: Yeah, I understand what you just said.
[PROSECUTOR]: Okay. Question number one states, do
you understand you have the right to be represented by an
attorney and a right to a free attorney if you can’t afford
one and you also meet the eligibility requirements of the
Erie County Public Defender’s office?
[APPELLANT]: Yeah, I understand that.
[PROSECUTOR]: Okay, I’m going to mark yes. Do you
know the nature and the elements of the charges against
you?
[APPELLANT]: I’ve read them.
[PROSECUTOR]: Okay. Would you – yes or no?
[APPELLANT]: Yes.
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[PROSECUTOR]: Do you know the nature – I’m going to
mark down yes. Are you aware of the possible range of
sentences, including fines and the maximum possible
penalty that can be imposed if you’re found guilty or plead
guilty?
[APPELLANT]: Yes.
[PROSECUTOR]: Okay. I’m going to mark down your
answer, yes. Do you understand that if you represent
yourself you will still be required to follow all the rules of
criminal procedure as well as the rules of evidence?
[APPELLANT]: Yes.
[PROSECUTOR]: Do you understand that an attorney will
be more familiar with these rules than you?
[APPELLANT]: I don’t – no, I don’t understand that… I
don’t understand how if an attorney is more familiar with it
than why am I in this courtroom right here right now?
THE COURT: Because you’re charged with crimes.
[APPELLANT]: Well, I should have – at the preliminary
hearing it should have never happened. It should have
been thrown out at the preliminary.
THE COURT: Well, that’s your opinion. But we’re past
that stage and now is your trial and if it should be thrown
out or you should be found not guilty, we have twelve
jurors who can decide that.
[APPELLANT]: Okay. Well, I’ll say yes.
[PROSECUTOR]: I’m going to mark your answer yes to
question five.
[APPELLANT]: All right.
[PROSECUTOR]: Okay. Question six states, do you
understand that there may be defenses to these charges
which counsel would be aware of?
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APPELLANT: yes.
[PROSECUTOR]: Do you understand that if those defenses
or other rights are not raised at the right time they may be
permanently lost?
[APPELLANT]: Yes.
[PROSECUTOR]: Do you understand that if errors or rule
violations occur and you don’t object to them at the right
time, you will lose your right to object to those errors or
rule violations permanently?
[APPELLANT]: Okay, yes.
[PROSECUTOR]: Are you voluntarily giving up your right to
be represented by an attorney?
[APPELLANT]: I would like standby counsel along with me.
That’s what I want. I want standby counsel to advise me
when I’m wrong and all of that. That’s what I would like
also. Standby counsel, you know….
[PROSECUTOR]: So question number nine, are you
voluntarily giving up your right to be represented by an
attorney?
[APPELLANT]: Yes.
[PROSECUTOR]: Question ten, which is the last question,
have you been forced or pressured in any way or have
promises been made to you that have influenced your
decision to waive your right to be represented by an
attorney?
[APPELLANT]: Well, you know, just to make sure it’s on
the record, the reason I want to represent myself and not
go with an attorney – with this particular attorney, Mr.
Celland (sic) is, you know, he hasn’t – he spoke to me one
time and never even talk – spoke to me about a defense in
my case, you know. He never even – he never done any
of that, you know. He didn’t do what I asked him to do at
the preliminary hearing which was, you know, ask for a
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pre-trial, pre-hearing lineup. I was never identified by the
victim. He came –
THE COURT: We’re not going to go into the primary
hearing.
[APPELLANT]: Oh, okay. Well, that’s the reason why I
want to represent myself, because I believe in my heart
that I could do a better job myself.
* * *
[PROSECUTOR]: So the question is has anybody… forced
you or pressured you in any way or have promises been
made to influence your decision today?
[APPELLANT]: No, no no, ain’t nobody –
[PROSECUTOR]: Marking your answer as no. Are all of the
answers that I’ve marked, one through ten, a correct
reflection of your answers today?
[APPELLANT]: Yes.
[PROSECUTOR]: Okay. The last line states that I have
read the above document in its entirely and you wish to
give up your right to be represented by an attorney. If
you agree with that statement, I’m going to have you sign
on the line marked defendant.
N.T., 2/11/2014, at 14-21.
Appellant then signed the written colloquy, which did not specify the
crimes with which Appellant was charged or the possible sentences for each
crime, and represented himself at trial. The jury convicted Appellant of
robbery, criminal conspiracy, burglary, possessing instruments of crime,
theft by unlawful taking, receiving stolen property, recklessly endangering
another person, unlawful restraint/involuntary servitude, and terroristic
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threats with intent to terrorize another.2 On April 2, 2014, the court
sentenced Appellant to an aggregate term of thirty (30) to sixty (60) years’
incarceration.
On April 28, 2015, this Court affirmed Appellant’s judgment of
sentence. Appellant did not file a petition for allowance of appeal with our
Supreme Court. On July 28, 2015, Appellant filed a pro se PCRA petition.
On August 3, 2015, the PCRA court appointed counsel, who filed a petition to
withdraw along with a no-merit letter pursuant to Turner3 and Finley4 on
August 14, 2015. On August 21, 2015, the PCRA court issued a notice
pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s PCRA
petition without a hearing. On August 24, 2015, the PCRA court granted
counsel’s petition to withdraw. On September 10, 2015, Appellant filed a
pro se objection to the PCRA court’s Pa.R.Crim.P. 907 notice. On September
17, 2015, after considering Appellant’s objection, the PCRA court dismissed
Appellant’s petition.
On September 30, 2015, Appellant filed a pro se notice of appeal. The
PCRA court did not order, and Appellant did not file, a Pa.R.A.P. 1925(b)
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2
18 Pa.C.S. §§ 3701(a)(1)(ii), 903(c), 3502(a)(1), 907(a), 3921(a),
3925(a), 2705, 2902(a)(2), and 2706(a)(1), respectively.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
4
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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statement. The PCRA court adopted its “Opinion and Notice of Intent to
Dismiss Without a Hearing,” filed September 17, 2015, as its Pa.R.A.P
1925(a) opinion.
Appellant raises the following issue for our review:
[WHETHER] DIRECT APPEAL COUNSEL WAS
CONSTITUTIONALLY DEFICIENT FOR FAILING TO ARGUE
ON APPEAL THAT THE TRIAL COURT ERRED IN ALLOWING
APPELLANT TO WAIVE HIS CONSTITUTIONAL RIGHT TO
COUNSEL WHERE THE COURT FAILED TO CONDUCT A
FULL AND COMPLETE ORAL WAIVER OF COUNSEL
COLLOQUY PRIOR TO GRANTING APPELLANT PERMISSION
TO PROCEED PRO SE[?]
Appellant’s Brief at 3.
Appellant’s claim that his direct appeal counsel was ineffective for
failing to argue on appeal that the trial court erred in allowing him to waive
his right to counsel without a full colloquy is cognizable under the PCRA, 42
Pa.C.S. § 9543(a)(2)(ii).
Our standard of review regarding PCRA relief is well-settled. “[W]e
examine whether the PCRA court’s determination is supported by the record
and free of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803
(Pa.2014) (internal quotation marks and citation omitted). “The scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) (citation
omitted). “It is well-settled that a PCRA court’s credibility determinations
are binding upon an appellate court so long as they are supported by the
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record.” Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa.2013)
(citation omitted). However, this Court reviews the PCRA court’s legal
conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080, 1084
(Pa.Super.2014) (citation omitted).
This Court follows the Pierce5 test adopted by our Supreme Court to
review claims of ineffective assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from
ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place. We have
interpreted this provision in the PCRA to mean that the
petitioner must show: (1) that his claim of counsel’s
ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and
(3) that the error of counsel prejudiced the petitioner-i.e.,
that there is a reasonable probability that, but for the error
of counsel, the outcome of the proceeding would have
been different. We presume that counsel is effective, and it
is the burden of Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal
citations and quotations omitted). “If an appellant fails to prove by a
preponderance of the evidence any of the Pierce prongs, the Court need not
address the remaining prongs of the test.” Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa.2010) (citation omitted).
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5
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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We must first determine whether Appellant’s claim of ineffective
assistance of counsel has merit. We observe:
“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
Nine of the Pennsylvania Constitution.” Commonwealth
v. Payson, 723 A.2d 695, 699-700 (Pa.Super.1999).
“Deprivation of these rights can never be harmless.” Id.The constitutional right to counsel may be waived, but this
waiver is valid only “if made with knowledge and
intelligence.” Id. at 700 (citing Commonwealth v. Carey,
340 A.2d 509 ([Pa.Super.]1975)).
“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.” Payson,
supra at 700 (citing Commonwealth v. Starr, 664 A.2d
1326 ([Pa.]1995)).
Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa.Super.2004).
Further,
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.
Commonwealth v. Phillips, 93 A.3d 847, 852 (Pa.Super.2014).
Pennsylvania Rule of Criminal Procedure 121 provides, in relevant
part:
Rule 121. Waiver of Counsel
(A) Generally.
(1) The defendant may waive the right to be represented
by counsel.
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(2) To ensure that the defendant’s waiver of the right to
counsel is knowing, voluntary, and intelligent, the judge or
issuing authority, 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
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 trial court must “fully advise the accused of the nature and elements
of the crime before accepting waiver of counsel.” Phillips, 93 A.3d at 853(internal citations omitted; emphasis deleted). Additionally, the court should
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“inquire about the defendant’s age, educational background, and basic
comprehension skills.” Id.Here, the trial court conducted an oral colloquy in which Appellant
indicated that he knew the nature and the elements of the charges against
him, and that he was aware of the possible range of sentences and
maximum possible penalties against him. However, the trial court did not
advise Appellant of the specific statutory maximum sentences for his crimes
in the oral or written colloquy. Further, the court did not inquire about his
age, educational background or basic comprehension skills. Thus, the court
failed to meet the minimum requirements of Rule 121.
We must now determine whether appellate counsel had a reasonable
basis for failing to raise this issue in a direct appeal, and whether this failure
prejudiced Appellant.
When a claim has arguable merit, and there has been no evidentiary
hearing below to determine if there was a reasonable basis for counsel’s
actions, then this Court will remand for an evidentiary hearing.
Commonwealth v. Shablin, 524 A.2d 511, 512 (Pa.Super.1987) (quoting
Commonwealth v. Spotts, 491 A.2d 132, 134 (Pa.Super.1985)).
However, if the “appellant was not prejudiced by the alleged error by
counsel, then an evidentiary hearing is unnecessary.” Commonwealth v.
Petras, 534 A.2d 483, 485 (Pa.Super.1987) (quoting Commonwealth v.
Clemmons, 479 A.2d 955, 957 (Pa.1984)).
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Further,
[w]here the record on appeal clearly shows that there
could have been no reasonable basis for the damaging
decision or omission by trial counsel, then of course the
judgment must be vacated and appropriate relief, such as
allowing the filing of post[-]trial motions or the ordering of
a new trial, granted. Where, on the other hand, it is
impossible to tell from the record whether or not the action
of trial counsel could have had a rational basis, the
appellate court will vacate the judgment, at least for the
time being, and remand for an evidentiary hearing at
which trial counsel may state his reasons for having
chosen the course of action taken. Neither of these
remedies, however, is appropriate if from the record it is
apparent that the actions claimed to constitute
ineffectiveness were in fact within the realm or trial tactics
of strategy.
Commonwealth v. Egan, 484 A.2d 802, 805 (Pa.Super.1984) (internal
citations omitted; emphasis deleted).
“[O]nly where record clearly establishes action or omission of…counsel
was without reasonable basis should PCRA court resolve reasonable basis
prong of ineffectiveness test without remand for evidentiary hearing
regarding… counsel’s strategy.” Commonwealth v. Williams, 899 A.2d
1060, 1065 (Pa.2006) (citing Commonwealth v. Williams, 732 A.2d 1167,
1189-90 (Pa.1999). Further, our Supreme Court “has expressed a distinct
preference for a hearing on counsel’s strategy before venturing to hold that
counsel lacked a reasonable basis for his or her action or inactions.”
Commonwealth v. Spotz, 84 A.3d 294, 303 (Pa.2014).
Here, if direct appeal counsel had raised the issue of the trial court’s
error of failing to conduct a complete oral colloquy before allowing Appellant
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to represent himself, this Court would have vacated his judgment of
sentence and allowed him to proceed to a new trial with counsel or with a
proper colloquy. See Phillips, 93 A.3d at 855 (holding, on direct appeal,
“[i]n light of the…courts’ failure to meet the minimum requirements of Rule
121 and to question Appellant on the qualitative aspects of his waiver of
counsel at multiple critical stages of the proceedings, we are constrained to
vacate the judgment of sentence and remand for further proceedings.”)
Without an evidentiary hearing, it is impossible to determine whether
appellate counsel had a reasonable basis for failing to raise an issue that
would have resulted in Appellant having a new trial with the assistance of
counsel. Further, counsel’s failure to raise Appellant’s issue may have
prejudiced him by preventing him from having a new trial, with counsel,
which may have affected the outcome of his jury trial. Thus, we are
constrained to vacate the PCRA order denying Appellant’s petition and
remand to the PCRA court for an evidentiary hearing to determine whether
appellate counsel had a reasonable basis for failing to raise Appellant’s claim
on direct appeal, and whether this failure prejudiced Appellant.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judge Mundy joins in the Memorandum
President Judge Emeritus Ford Elliott notes her dissent.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2016
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