J-S63040-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

CHRISTOPHER ALLEN ZUNNER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 328 WDA 2018

Appeal from the Judgment of Sentence February 2, 2018

In the Court of Common Pleas of Cambria County Criminal Division at 

No(s): CP-11-CR-0000220-2015, 

CP-11-CR-0001082-2015, CP-11-CR-0001083-2015, 

CP-11-CR-0001085-2015, CP-11-CR-0001086-2015, 

CP-11-CR-0001123-2015, CP-11-CR-0001414-2014, 

CP-11-CR-0001463-2014, CP-11-CR-0001704-2014, 

CP-11-CR-0001814-2014, CP-11-CR-0002241-2014, 

CP-11-CR-0002242-2014

BEFORE: OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 30, 2018

Appellant, Christopher Allen Zunner, appeals from the February 2, 2018, 

judgment of sentence entered in the Court of Common Pleas of Cambria 

County following his revocation from the State Intermediate Punishment 

(“SIP”) program.1 After a careful review, we are constrained to vacate the 

February 2, 2018, judgment of sentence and remand for further proceedings. 

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1 We note that Appellant omitted from his notice of appeal docket number CP11-CR-0001084-2015, which was included in Appellant’s February 2, 2018, 

judgment of sentence. Further, we note Appellant filed one notice of appeal 
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The relevant facts and procedural history are as follows: Appellant was 

charged with multiple offenses in connection with crimes occurring in 2014 

and 2015, and Michael Walther, Esquire, was appointed to represent 

Appellant. However, after Appellant expressed dissatisfaction with his 

representation, Attorney Walther filed a petition seeking to withdraw. The 

trial court granted Attorney Walther’s petition, and following an oral and 

written colloquy, the trial court permitted Appellant to proceed pro se with 

Gary Vitko, Esquire, as standby counsel. On December 11, 2015, Appellant 

entered guilty pleas in the cases that were pending against him.2

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listing numerous docket numbers. On June 1, 2018, the Pennsylvania 

Supreme Court, in Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 

(2018), held that such a practice violates Pennsylvania Rule of Appellate 

Procedure 341(a), and the failure to file separate notices of appeal for 

separate dockets will result in quashal of the appeal. See id. However, the 

Court announced its holding was prospective only. See id. Moreover, 

Appellant’s omission as it relates to docket number CP-11-CR-0001084-2015, 

as well as his failure to file separate notices of appeal, occurred when Appellant 

was pro se without a valid waiver of his right to counsel (as more fully 

explained infra).

2 Specifically, Appellant pled guilty to the following charges: At 1704-2014, 

Count 1-Possession with Intent to Deliver, 35 P.S. § 780-113(a)(3); at 1082-

2015, Count 3-Criminal Trespass, 18 Pa.C.S.A. § 3503(a)(1)(ii); at 1123-

2015, Count 2-Theft by Deception, 18 Pa.C.S.A. § 3922(a)(1); at 0220-2015, 

Count 1-Forgery, 18 Pa.C.S.A. § 4104(a)(2); at 1085-2015, Count 1-Access 

Device Fraud, 18 Pa.C.S.A. § 4106(a)(1)(ii); at 1083-2015, Count 1-Theft by 

Unlawful Taking, 18 Pa.C.S.A. § 3921(a); at 1814-2014, Count 1-Theft by 

Unlawful Taking, 18 Pa.C.S.A. § 3921(a); at 2242-2014, Count 1-Retail Theft, 

18 Pa.C.S.A. § 3929; at 2241-2014, Count 1-Criminal Conspiracy, 18 

Pa.C.S.A. § 903; at 1414-2014, Count 1-Use or Possession of Drug 
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On January 27, 2016, the Commonwealth filed a motion for SIP, and 

following a determination that Appellant was SIP eligible, the trial court 

sentenced Appellant to an aggregate of twenty-four months of SIP, to be 

followed by fifteen years of probation, as well as pay restitution totaling 

$16,621.12. 

Thereafter, the Department of Corrections advised the trial court that 

Appellant was expelled from the SIP program due to misconduct.3 

Consequently, the trial court held a SIP revocation hearing on February 2, 

2018, at which Appellant appeared pro se via video with Attorney Vitko as 

standby counsel. The trial court found Appellant had been expelled from the 

SIP program and then imposed an aggregate sentence of 46 months to 360 

months in prison. In addition, the trial court directed Appellant to pay 

restitution totaling $16,621.12. 

Appellant filed a timely pro se motion for reconsideration of his 

sentence, which the trial court denied. Thereafter, Appellant filed a timely pro 

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Paraphernalia, 35 P.S. § 780-113(a)(32); at 1463-2014, Count 1-Use or 

Possession of Drug Paraphernalia, 35 P.S. § 780-113(a)(32); at 1084-2015, 

Count 1-Theft by Unlawful Taking, 18 Pa.C.S.A. § 2921(a); and at 1086-2015, 

Count 1-Access Device Fraud, 18 Pa.C.S.A. § 4106(a)(1)(ii).

3 61 Pa.C.S.A. § 4105 (f) sets forth that a participant may be expelled from 

the program and, when such occurs, the Department of Corrections shall 

promptly notify the trial court, the defendant, and the attorney for the 

Commonwealth. 
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se notice of appeal, as well as a request for the appointment of counsel, and 

the trial court appointed Richard M. Corcoran, Esquire, to assist Appellant. 

On appeal, Appellant suggests the trial court did not properly ensure 

that he waived his right to counsel for purposes of the SIP revocation and 

resentencing hearing. We agree, and, therefore, we vacate the February 2, 

2018, judgment of sentence and remand for a new SIP revocation hearing.

It is well-settled that a defendant is entitled to counsel “at every stage 

of a criminal proceeding where substantive rights of the accused may be 

affected.” Commonwealth v. Johnson, 574 Pa. 5, 828 A.2d 1009 (2003). 

This Court has held that an SIP sentence is analogous to a probation sentence. 

See Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.Super. 2010). 

Accordingly, the rights due to a defendant at a SIP revocation proceeding are 

similar to those due to a defendant at a probation revocation proceeding. See 

id. In this regard, we note that the U.S. Supreme Court has held that counsel 

must be afforded at a violation of probation hearing. See Mempa v. Rhay, 

389 U.S. 128 (1967) (holding counsel must be afforded at a probation 

revocation hearing). 

Moreover, Pennsylvania Rule of Criminal Procedure 708 expressly 

provides, in relevant part:

Whenever a defendant has been sentenced to probation or 

intermediate punishment, or placed on parole, the judge shall 

not revoke such probation, intermediate punishment, or parole 

as allowed by law unless there has been:

(1) a hearing held as speedily as possible at which the defendant 

is present and represented by counsel[.]
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Pa.R.Crim.P. 708(B) (emphasis added).

4

It is well-settled that the right to counsel may be waived. “When a 

waiver of the right to counsel is sought..., an on-the-record determination 

should be made that the waiver is a knowing, intelligent, and voluntary one.” 

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super. 2009) (en 

banc) (quotation marks and quotation omitted). See Commonwealth v. 

Patterson, 931 A.2d 710 (Pa.Super. 2007) (holding a waiver colloquy must 

be conducted prior to granting a defendant’s request to proceed pro se at a 

probation revocation proceeding). The content of the on-the-record colloquy 

is set forth in Pa.R.Crim.P. 121.

Here, as it pertains to Appellant’s February 2, 2018, SIP revocation and 

resentencing hearing, the trial court did not determine whether Appellant was 

aware of his right to counsel and/or whether Appellant voluntarily and 

intelligently waived this right. Instead, the record reflects the trial court 

summarily accepted Appellant’s pro se status with Attorney Vitko as standby 

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4 We note that, once the trial court determines a defendant has not 

successfully completed the SIP program and revokes the SIP sentence, the 

trial court, much like a probation revocation, has the same sentencing 

alternatives available to it as it had at the time of the original sentence. 42 

Pa.C.S.A. § 9774(c).
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counsel.5 For instance, the following exchange occurred during the SIP 

revocation and resentencing hearing:

THE COURT: Mr. Vitko, anything?

ATTORNEY VITKO: Your Honor, I’m merely standby counsel. It’s 

[Appellant’s] show.

N.T., 2/2/18, at 3. 

Accordingly, we conclude there was no effective waiver of Appellant’s 

right to counsel at the SIP revocation proceedings, and thus, we vacate the 

February 2, 2018, judgment of sentence and remand for further proceedings.6

Judgment of Sentence Vacated; Case Remanded; Jurisdiction 

Relinquished.

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5 Our Supreme Court has held that the presence of standby counsel does not 

relieve the trial court of its duty to determine whether the appellant has 

knowingly, voluntarily, and intelligently waived his right to counsel and 

proceed pro se. Commonwealth v. Brazil, 549 Pa. 321, 701 A.2d 216 

(1997). 

6 Since we are vacating Appellant’s judgment of sentence and remanding for 

a new SIP revocation hearing based on the failure of the trial court to obtain 

a knowing and intelligent waiver of Appellant’s right to counsel, we do not 

reach Appellant’s remaining issue, i.e., whether the trial court abused its 

discretion in fashioning Appellant’s sentence following the revocation of his 

SIP sentence.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/30/2018