Com. v. Talley, Q.

J-S35040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
QUINTEZ TALLEY :
:
Appellant : No. 1980 EDA 2019
Appeal from the PCRA Order Entered July 10, 2019
in the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003711-2009
BEFORE: BOWES, J., STABILE, J., and COLINS, J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 30, 2020
The Majority, like the PCRA court correctly notes that the general rule,
affirmed recently by our Supreme Court in Commonwealth v. Williams, 196
A.3d 1021, 1029-30 (Pa. 2018), is that a criminal defendant who elects to
represent himself cannot seek collateral relief upon a claim that his standby
counsel rendered ineffective assistance. However, our Supreme Court has
rejected the notion that all claims regarding counsel’s performance are waived
when the previously-waived right to counsel is subsequently reasserted. See
Commonwealth v. Bryant, 855 A.2d 726, 737 (Pa. 2004) (deeming claims
of ineffective waived as to the part of the trial when the defendant was
representing himself, but reviewing the merits of claims related to counsel’s
performance after the defendant requested that standby counsel take over).
While Bryant involved an express abandonment of the right to self-
representation mid-trial, the Court cited with approval cases from other
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jurisdictions that indicate that such waiver may be implicit. Id. (“[S]ee . . .
Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir.1994) (‘Once asserted . . . the
right to self-representation may be waived through conduct indicating that
one is vacillating on the issue or has abandoned one’s request altogether.’)
Raulerson v. Wainwright, 732 F.2d 803, 809 (11th Cir. [1984]) (defendant
waived self-representation right by proceeding with assigned counsel)[.]”).
From my review of the certified record, it is clear that Appellant
abandoned his request to proceed pro se. The transcripts themselves indicate
that two attorneys appeared each day of the trial as counsel for Appellant, not
as standby counsel. See N.T. Trial, 6/6/12, at 1 (listing under “appearances”
John Konchak, Esquire, and Robert Listenbee, Esquire, as counsel for
Appellant); N.T. Trial, 6/7/12, at 1 (same); N.T. Trial, 6/8/12, at 1 (same).
More importantly, at the outset of trial, counsel advised the court that
Attorney Konchak would open and examine most of the witnesses, and
Attorney Listenbee might question some witnesses, but Appellant himself
would not be questioning any witnesses. See N.T. Trial, 6/6/12, at 5-6.
Appellant did not make a single objection or argument, or question any
witnesses. His participation at trial was limited to that typically seen when a
defendant has counsel: he entered his plea and answered when his counsel
colloquied him about testifying in his own defense. See N.T. Trial, 6/6/12, at
6-7; N.T. Trial, 6/8/12, at 53-54. Accordingly, I cannot agree with the
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Majority’s decision to deem Appellant’s claims waived due to his initial
assertion of his right to self-representation.
Nonetheless, I agree that Appellant is entitled to no relief from this
Court. As noted by both the PCRA court and the Commonwealth, Appellant’s
claim lacks merit because Appellant had several mental health evaluations and
offered no evidence that a mental health defense at trial had arguable merit.
See PCRA Court Opinion, 12/16/19, at 4; Commonwealth’s brief at 6-7. I
would affirm the PCRA court’s order on that basis. See, e.g.,
Commonwealth v. Thompson, 199 A.3d 889, 892 n.4 (Pa.Super. 2018)
(“We may affirm the PCRA court’s decision on any basis.” (cleaned up)).
Therefore, I respectfully concur.
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