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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENNETH LEE BEAVER

Appellant No. 1361 EDA 2015

Appeal from the PCRA Order April 2, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1302386-2006

BEFORE: OTT, J., DUBOW, J., and JENKINS, J. 

MEMORANDUM BY OTT, J.: FILED JUNE 16, 2016

Kenneth Lee Beaver appeals the order entered April 2, 2015, in the 

Philadelphia County Court of Common Pleas, dismissing his first petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et 

seq. Beaver seeks relief from the judgment of sentence of a term of 59 to 

119 months’ imprisonment imposed on October 25, 2007, after a jury found 

him guilty of robbery and simple assault.1 On appeal, Beaver claims: (1) 

the PCRA court erred in denying his petition without an evidentiary hearing; 

and (2) the PCRA court erred by failing to find that trial counsel was 

ineffective for failing to object to his waiver-of-counsel colloquy. For the 

reasons that follow, we affirm.

____________________________________________

1 18 Pa.C.S. §§ 3701(a)(1)(iv) and 2701(a), respectively.
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Beaver’s conviction arose out of robbery and assault on November 11, 

2006, when Beaver hit the victim, Miguel Porfilio, on the head with a hard 

object while demanding money. The matter proceeded to a jury trial in 

September of 2007. During jury selection, Beaver was unsatisfied with his 

counsel’s strategy, and decided that he wanted to waive his constitutional 

right to counsel and proceed pro se. The trial court conducted an oral 

colloquy in which it reviewed only five of the six elements listed in 

Pennsylvania Rule of Criminal Procedure 121. See Pa.R.Crim.P. 

121(A)(2)(a)-(f).2 At the conclusion of the colloquy, Beaver chose to waive 

his right to counsel and the trial court permitted the waiver, but also 

appointed standby counsel. 

On September 24, 2007, the jury convicted Beaver of robbery and 

simple assault. On October 25, 2007, the trial court sentenced Beaver to a 

term of 59 to 119 months on the robbery conviction.3

On direct appeal, Beaver asserted his colloquy for waiver of counsel 

was constitutionally inadequate. On July 7, 2010, a panel of this Court 

concluded that because the Commonwealth did not inform Beaver of the 

elements of the charges against him, the colloquy was deficient. 

____________________________________________

2

 The court failed to identify the elements of the charges as required by 

Pa.R.Crim.P. 121(A)(2)(b).

3

 Beaver had an extensive criminal history and, with respect to the incident 

at issue, he robbed the victim only 36 days after being paroled from state 

prison.
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Consequently, the panel vacated the judgment of sentence and remanded to 

the trial court for a new trial. See Commonwealth v. Beaver, 6 A.3d 549 

[3199 EDA 2007] (Pa. Super. 2010) (unpublished memorandum). However, 

on May 3, 2011, the Pennsylvania Supreme Court vacated the panel’s order 

and remanded to this panel with direction to address “the Commonwealth's 

contention that [Beaver] was represented by counsel during the waiver-ofcounsel colloquy and, thus, did not sufficiently preserve by objection the 

contention that the colloquy was constitutionally inadequate.” See 

Commonwealth v. Beaver, __ A.3d __, 2011 Pa. LEXIS 1056 [575 EAL 

2010] (Pa. 2011) (per curiam).

On remand, this Court affirmed the judgment of sentence, finding 

Beaver had waived the issue regarding his colloquy.4 Commonwealth v. 

Beaver, 32 A.3d 282 [3199 EDA 2007] (Pa. Super. 2011) (unpublished 

memorandum). On February 8, 2012, the Pennsylvania Supreme Court 

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4

 Specifically, the panel determined:

Beaver was represented by counsel at the start of trial and 

during the waiver colloquy. In addition, at the conclusion of the 

colloquy, neither Beaver nor his attorney objected, and his 

attorney stated that no additional questions or information was 

necessary. It was not until after this colloquy was completed and 

Beaver’s attorney was relegated to standby counsel that Beaver 

began to proceed pro se.

Beaver, 32 A.3d 282 [3199 EDA 2007] (Pa. Super. 2011) (unpublished 

memorandum at 3).
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denied his petition for allowance of appeal. See Commonwealth v. 

Beaver, 37 A.3d 1193 (Pa. 2012).

Subsequently, on February 21, 2012, Beaver filed a pro se PCRA 

petition. Counsel was appointed and, on November 3, 2013, filed an 

amended PCRA petition, claiming that trial counsel was ineffective for failing 

to object to Beaver’s waiver-of-counsel colloquy. The Commonwealth filed a 

motion to dismiss on January 7, 2015. After reviewing the matter, the PCRA 

court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition 

without first conducting an evidentiary hearing on February 27, 2015. 

Beaver did not file a response. Thereafter, on April 2, 2015, the court 

entered an order, dismissing Beaver’s PCRA petition.5 This appeal followed.6

Based on the nature of Beaver’s claims, we will address them 

together. First, Beaver claims the PCRA court erred in denying his petition 

without holding an evidentiary hearing on the issues raised in his amended 

PCRA petition. Beaver’s Brief at 15-16. Second, he argues the PCRA court 

erred by failing to find that trial counsel was ineffective for failing to object 

to his deficient waiver-of-counsel colloquy. Id. at 16. As noted above, the 

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5

 We note the Rule 907 notice and the April 2, 2015, order were not 

included in the certified record. Nevertheless, they were included on the 

docket and neither party complains the court did not enter these documents.

6

 On May 6, 2015, the PCRA court ordered Beaver to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Beaver filed a concise statement on May 26, 2015. The court issued an 

opinion pursuant to Pa.R.A.P. 1925(a) on June 11, 2015.
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trial court failed to identify the elements of the charges as required by Rule 

121(A)(2)(b). Beaver complains that with respect to counsel’s omission, 

counsel failed “to ensure [Beaver’s] waiver was voluntary, knowing and 

intelligent.” Id. Moreover, with respect to the ineffectiveness test, he 

states: (1) his claim has arguable merit because this Court’s July 7, 2010, 

decision found that the colloquy was inadequate;7(2) there was no 

reasonable basis “not to correct the colloquy;”8and (3) he suffered prejudice 

as a result because “[h]ad [Beaver] been given a correct colloquy, he likely 

would have proceeded with counsel.”9

Our standard and scope of review for the denial of a PCRA petition is 

well-settled:

Our standard of review of the denial of a PCRA petition is limited 

to examining whether the evidence of record supports the 

court’s determination and whether its decision is free of legal 

error. Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 

2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This 

Court grants great deference to the findings of the PCRA court if 

the record contains any support for those findings. 

Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007), 

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). “[A] petitioner 

is not entitled to a PCRA hearing as a matter of right; the PCRA

court can decline to hold a hearing if there is no genuine issue 

concerning any material fact and the petitioner is not entitled to 

post-conviction collateral relief, and no purpose would be served 

by any further proceedings.” Commonwealth v. Taylor, 933 

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7

 Id. at 19.

8

 Id. at 20.

9

 Id.
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A.2d 1035, 1040 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 

951 A.2d 1163 (2008); Pa.R.Crim.P. 907(1). “A reviewing court 

on appeal must examine each of the issues raised in the PCRA

petition in light of the record in order to determine whether the 

PCRA court erred in concluding that there were no genuine 

issues of material fact and in denying relief without an 

evidentiary hearing.” Commonwealth v. Derrickson, 923 A.2d 

466, 468 (Pa. Super. 2007), appeal denied, 594 Pa. 685, 934 

A.2d 72 (2007).

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015), appeal 

denied, __ A.3d __ [547 EAL 2015] (Pa. Apr. 12, 2016).

Further, considering just the specific claim appellant has raised 

in this appeal, a PCRA petitioner will be granted relief only when 

he proves, by a preponderance of the evidence, that his 

conviction or sentence resulted from the “[i]neffective 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.” 42 

Pa.C.S.A. § 9543(a)(2)(ii). As our supreme court has stated:

It is well-established that counsel is presumed to have 

provided effective representation unless the PCRA 

petitioner pleads and proves all of the following: (1) the 

underlying legal claim is of arguable merit; (2) counsel’s 

action or inaction lacked any objectively reasonable basis 

designed to effectuate his client’s interest; and (3) 

prejudice, to the effect that there was a reasonable 

probability of a different outcome if not for counsel’s 

error.

The PCRA court may deny an ineffectiveness claim if the 

petitioner’s evidence fails to meet a single one of these prongs. 

Moreover, a PCRA petitioner bears the burden of demonstrating 

counsel’s ineffectiveness. 

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (case 

citations omitted).

Lastly, we are also guided by the following:
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A criminal defendant has a constitutional right, necessarily 

implied under the Sixth Amendment of the U.S. Constitution, to 

self-representation at trial. Faretta v. California, 422 U.S. 

806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). However, before

a defendant will be permitted to proceed pro se, he or she must 

knowingly, voluntarily, and intelligently waive the right to 

counsel. Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 

645, 655 (Pa. 2008). To ensure that a waiver is knowing, 

voluntary, and intelligent, the trial court must conduct a “probing 

colloquy,” which is a searching and formal inquiry as to whether 

the defendant is aware both of the right to counsel and of the 

significance and consequences of waiving that right. 

Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1335-

36 (Pa. 1995). More specifically, the court must determine the 

following:

(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.
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Pa.R.Crim.P. 121(A)(2); Blakeney, supra at 655; Starr, supra

at 1335.

Although our rules set forth specific requirements for a waiver 

colloquy, we have been careful to distinguish between a colloquy 

and the right that it was designed to protect, as follows:

A waiver colloquy is a procedural device; it is not a 

constitutional end or a constitutional “right.” ... . [A]n onthe-record colloquy is a useful procedural tool whenever 

the waiver of any significant right is at issue, constitutional 

or otherwise, e.g., waiver of a trial, waiver of the right to 

counsel, waiver of the right to call witnesses, waiver of the 

right to cross-examine witnesses, waiver of rules-based 

speedy trial time limits, etc. But the colloquy does not 

share the same status as the right itself.

Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 697 

(Pa. 2008) (applying the above principle in the context of waiver 

of the right to a jury trial).

As Mallory made explicitly clear, when a petitioner claims 

ineffective assistance of counsel based on a failure to object to 

an allegedly defective waiver colloquy, the claim must be 

analyzed like any other ineffectiveness claim. Id. at 698. The 

petitioner cannot prevail merely by establishing that the waiver 

colloquy was indeed defective in some way. Rather, the 

petitioner must prove that, because of counsel’s ineffectiveness, 

he waived the constitutional right at issue unknowingly or 

involuntarily, and that he was prejudiced. To establish 

prejudice, the petitioner must demonstrate a reasonable 

probability that but for counsel’s ineffectiveness, he 

would not have waived the right at issue. Id. at 698-704. 

In considering such a claim of ineffectiveness, the court 

considers the totality of the circumstances and the entire record, 

not just the colloquy itself. Id. at 698, 704.

Commonwealth v. Spotz, 18 A.3d 244, 263-264 (Pa. 2011) (emphasis 

added).

Turning to the present matter, other than a bald assertion, Beaver has 

not met his burden or demonstrated that he would not have waived his right 
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to counsel had the trial court conducted a sufficient colloquy. Indeed, he 

provides no explanation as to why being informed of the elements of the 

offenses would have affected his decision to waive counsel.

The record shows that the trial court conducted a colloquy after Beaver 

indicated he wanted to represent himself at trial, including at jury selection. 

See N.T., 9/20/2008, at 21. Beaver acknowledged his right to be 

represented by counsel and to have free counsel appointed for him. Id. at 

24-25. Beaver stated he was not under the influence of alcohol, prescription 

medication, or mental disorders that would affect his decision. Id. at 28-29. 

He indicated he was aware of the two charges he faced and the grading of 

those offenses. Id. at 26. Beaver acknowledged he would be bound by all 

the normal rules of procedure and evidence. Id. at 27. The court informed 

Beaver that there were certain dangers to proceeding pro se, dangers which 

he may not be familiar with but that counsel would be. Id. at 27. Beaver 

also understood that there were certain rights and defenses that would be 

permanently lost if not raised properly. Id. at 27-28. After the questioning, 

the trial court determined Beaver knowingly, voluntarily, and intelligently 

waived his right to counsel. Id. at 29-31. In addition, the court appointed 

Vincent Corrigan, Esquire, who had been serving as trial counsel to serve in 

the role of stand-by counsel. Id. at 29-30. Beaver indicated he understood 

the role of standby-counsel. Id. at 31.
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Furthermore, as the Commonwealth mentions,10 in Beaver’s opening 

statement to the jury, he told the fact-finders why he was representing 

himself: 

Why pro se? 

Why do I represent myself? 

I am self representing pro se not to make a political statement, 

but because I don’t and can’t trust the legal profession

based on the failure to disclose.

The existing a secret law between the federal Unites States 

defined at 28 US 30215, a federal cooperation in the compact, 

the general factors states that the people and our free and 

habitus of the several states as title 50 USC a trading with the 

enemy act, war power act, modifying 5B of said act signed March 

4th and March 6th of 1933 by Franklin D. Roosevelt and 

contendere yearly by President to date the suit to title three 

code of federal regulations January 1, 1997. 

We have lawyers in the White House, congress in our judiciary. 

The court is run by lawyers and they are all legislative. The 

president legislates with executive quarters and presidential 

decisions directly the legislature legislates anything they want 

and conflict with Article 1 section 8 of our Constitution the judge 

has made knew laws by making words meaning whatever they 

want is called judicial construction our Constitution and the 

rights guaranteed by you.

N.T., 9/21/2007, at 21 (emphasis added) (grammatical errors in original).

Additionally, Beaver was previously convicted of both robbery and 

simple assault, and was imputably aware of the elements of those offenses. 

See N.T., 10/25/2007, at 14-15. Therefore, we find any allegation that he 

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10

 See Commonwealth’s Brief at 10-11.
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would not have waived his right to counsel if the court had properly informed 

him during the colloquy as to the elements of the crimes charged is 

improbable.11

Lastly, as the PCRA court pointed out:

[Beaver]’s numerous pro se filings between 2007 and 2014, 

demonstrate that he prefers acting as his own attorney and 

questions the competency of counsel to represent him. For 

example, during his self-representation in letters and filings, he 

often quotes legalese and cites case law, which he apparently 

believes counsel would have failed to present to the court for 

him. This is evidence that [Beaver] simply believed he could 

handle his case better than a seasoned court-appointed 

attorney.

PCRA Court Opinion, 6/11/2015, at 6-7 (footnoted omitted).

Based on the totality of the circumstances, we conclude Beaver has 

not demonstrated that “there [was] a reasonable probability that but for 

counsel’s ineffectiveness, he would not have waived the right at issue.” 

Spotz, 18 A.3d at 263-264. As such, Beaver has not established prejudice, 

the third prong of the ineffectiveness test, and his ineffective assistance of 

counsel argument fails. Franklin, 990 A.2d at 797. Moreover, we find the 

PCRA court did not err in declining to hold a hearing because there was no 

genuine issue concerning any material fact. Smith, 121 A.3d at 1052. 

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11 See also Commonwealth’s Brief at 11 (noting Beaver had been tried, 

convicted, and sentenced in three prior criminal actions involving the same 

crimes he faced in the present matter).
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Accordingly, the PCRA court did not err in denying Beaver’s petition and no 

relief is warranted.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/16/2016