J-S12002-15

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAWN N. WEBB,

Appellant No. 1831 EDA 2012

Appeal from the Judgment of Sentence May 24, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013009-2011

BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2015

Shawn N. Webb appeals from the judgment of sentence of fifteen days 

to six months imprisonment after the trial court adjudicated Appellant guilty 

of driving under the influence of alcohol, general impairment, with refusal of 

a blood alcohol content (“BAC”) test. Appellate counsel has filed a petition 

seeking to withdraw his representation and a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009), which govern a withdrawal from representation on 

direct appeal. We conclude that, contrary to counsel’s assessment, the 

certified record establishes that Appellant did not validly waive his right to 

counsel at trial and is entitled to relief. We therefore reverse and remand 

for a new trial. 
J-S12002-15

- 2 -

At approximately 2:45 a.m. on August 3, 2010, Philadelphia Police 

Officer Stacy Little observed Appellant’s vehicle traveling in the wrong 

direction down a one-way street, Church Lane. When Officer Little 

effectuated a stop and approached his vehicle, she detected a strong odor of 

alcohol on Appellant’s breath. Appellant’s clothing was in disarray, and his 

eyes were bloodshot. When asked for his license, registration, and 

insurance card, Appellant appeared to be in a stupor, had difficultly 

complying with the demand, and did not understand simple requests. 

Appellant, who also slurred his speech and had an unsteady gait, was 

arrested for DUI, and, after being given the appropriate warnings, 

subsequently refused BAC testing. A police witness opined that Appellant 

was sufficiently intoxicated that he was incapable of safely operating a motor 

vehicle. Based on this proof, Appellant was found guilty of driving under the 

influence of alcohol, incapable of safely driving, and refusing a BAC test. 

This appeal followed imposition of the above-delineated judgment of 

sentence. 

Before we address the questions raised on appeal, we first must 

resolve appellate counsel’s request to withdraw. Commonwealth v. 

Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). There are procedural 

and briefing requirements imposed upon an attorney who seeks to withdraw 

on appeal. The procedural mandates are that counsel must
J-S12002-15

- 3 -

1) petition the court for leave to withdraw stating that, 

after making a conscientious examination of the record, counsel 

has determined that the appeal would be frivolous; 2) furnish a 

copy of the brief to the defendant; and 3) advise the defendant 

that he or she has the right to retain private counsel or raise 

additional arguments that the defendant deems worthy of the 

court's attention.

Id. at 1032 (citation omitted). 

Our review of counsel’s petition to withdraw reveals that it is compliant 

with these directives. Additionally, counsel attached a copy of a letter sent 

to Appellant wherein counsel advised Appellant of his right to proceed pro se

or with retained counsel and which operated as a cover letter for the brief 

filed in the within appeal. Since we have ascertained that counsel complied 

with the procedural requirements of Anders, we now consider whether his 

brief satisfies the mandates of Santiago. In that decision, our Supreme 

Court outlined that 

in the Anders brief that accompanies court-appointed counsel's 

petition to withdraw, counsel must: (1) provide a summary of 

the procedural history and facts, with citations to the record; (2) 

refer to anything in the record that counsel believes arguably 

supports the appeal; (3) set forth counsel's conclusion that the 

appeal is frivolous; and (4) state counsel's reasons for 

concluding that the appeal is frivolous. Counsel should articulate 

the relevant facts of record, controlling case law, and/or statutes 

on point that have led to the conclusion that the appeal is 

frivolous.

Santiago, supra at 361.

In the brief at issue herein, counsel attempts to comply with 

Santiago. However, he incorrectly analyzes the first of two issues 
J-S12002-15

- 4 -

presented in that document. Specifically, counsel asserts that he identified 

two contentions that Appellant potentially could raise on appeal. First, “Did 

the trial court err in allowing [Appellant] to proceed to trial while 

representing himself?” Appellant’s brief at 10. Second, “Was [Appellant] 

denied his right to a trial by jury.” Id. at 12. 

While counsel suggests that Appellant’s waiver of counsel was sound, 

we disagree. In his brief, counsel fails to outline either the content of the 

colloquy or the areas of inquiry set forth in Pa.R.Crim.P. 121, which governs 

waiver-of-counsel proceedings. A comparison of the colloquy herein with the 

requirements of Pa.R.Crim. 121 reveals that the waiver was invalid. The 

pertinent law follows. 

The Pennsylvania Supreme Court has stated, "The waiver of the right 

to counsel must appear from the record to be a knowing and intelligent 

decision made with full understanding of the consequences." 

Commonwealth v. Szuchon, 484 A.2d 1365, 1377 (Pa. 1984). In Von 

Moltke v. Gillies, 332 U.S. 708, 724 (1948), the United States Supreme 

Court provided guidance as to the minimum information to be disseminated 

to the defendant:

To be valid . . . waiver [of the right to counsel] must be made 

with an apprehension of the nature of the charges, the statutory 

offenses included within them, the range of allowable 

punishments thereunder, possible defenses to the charges and 

circumstances in mitigation thereof, and all other facts essential 

to a broad understanding of the whole matter. A judge can 

make certain that an accused's professed waiver of counsel is 
J-S12002-15

- 5 -

understandingly and wisely made only from a penetrating and 

comprehensive examination of all the circumstances under which 

such a plea is tendered.

In accordance with these principles, Pa.R.Crim. P. 121 outlines the 

areas that must be covered to ensure a valid waiver of the right to counsel: 

(A)(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. 
J-S12002-15

- 6 -

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

Additionally, “a waiver colloquy must, of course, always contain a clear 

demonstration of the defendant’s ability to understand the questions posed 

to him during the colloquy.” Commonwealth v. McDonough, 812 A.2d 

504, 507 n.1 (Pa. 2002). We also observe that our High Court has indicated 

that it is incumbent upon the trial court to ensure that it conducts the proper 

colloquy once a defendant seeks to represent himself. Commonwealth v. 

Davido, 868 A.2d 431 (Pa. 2005). The Davido Court outlined:

In Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504 

(2002), this court considered whether the prosecutor could 

“colloquy” a defendant consistent with Rule 121. We 

acknowledged that a defendant had the right to represent 

himself at trial. McDonough, 812 A.2d at 506 (citing Faretta v. 

California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 

(1975)). We then made clear that when a defendant desired to 

represent himself, “he must petition the court and the court 

must follow the appropriate legal procedure for securing a valid 

waiver of counsel.” Id. Rule 121 provided the appropriate legal 

procedure and could be complied with by the prosecutor's 

colloquy so long as the prosecutor inquired into the six areas set 

forth by the Comments to Rule 121 before the trial judge.

McDonough, 812 A.2d at 506-07. In this way, the trial judge 

could ascertain on the record whether there was a knowing, 

voluntary, and intelligent waiver of counsel. Id. at 508. We 

stressed, however, that it was the trial judge who was 

“ultimately responsible for ensuring that the defendant is 

questioned about the six areas discussed above and for 

determining whether the defendant is indeed making an 

informed and independent decision to waive counsel.” Id.

Likewise, we held that it was the “trial judge” that had the duty 

to ensure that a defendant's right to counsel was protected. Id.

Thus, we conclude that, consistent with McDonough, the 

Rules of Criminal Procedure are clear that it is up to the 

trial court, and not counsel, to ensure that a colloquy is 
J-S12002-15

- 7 -

performed if the defendant has invoked his right to self 

representation.

Id. at 437-38 (footnote omitted; emphasis added). Thus, the failure to 

object at the trial level to a deficient waiver colloquy is not fatal to appellate 

review.1 

The following facts are relevant. Appellant was appointed counsel, 

Stephen J. Fleury Jr., from the Defender Association of Philadelphia. At the 

inception of trial, Mr. Fleury reported that Appellant told him that he “does 

not wish my services.” N.T. Trial (Waiver), 5/24/12, at 3. Appellant 

confirmed that he wanted to represent himself. The Court queried, “Did Mr. 

Fleury discuss with you the problems and the possible pitfalls you face if you 

do that?” Id. at 4. Appellant answered, “No, he didn’t.” Id. 

The trial court first determined that Appellant was capable of 

understanding the proceedings. It ascertained that Appellant was fortyeight years old, had attended some college, could read and write English, 

was not under the influence of drugs or alcohol, was never treated for 

mental illness, and was not receiving psychiatric care. Id. at 6-8. Next, the 

trial court informed Appellant that he had the right to court-appointed 

counsel:

THE COURT: Do you understand you have a right to be 

represented by counsel in this hearing? 

 

1

 In light of this precedent, the trial court’s observation that Appellant’s 

counsel did not object to the sufficiency of the waiver colloquy is inapt. 
J-S12002-15

- 8 -

. . . . 

THE DEFENDANT: Yes. 

THE COURT: Okay. And if you cannot afford a lawyer counsel 

would be appointed for you. Do you understand that?

THE DEFENDANT: Somewhat, yes.

THE COURT: What do you mean somewhat? You either 

understand or you don’t understand. 

THE DEFENDANT: I mean, you [are] saying that they would be 

appointed for me?

THE COURT: That’s Mr. Fleury sitting next to you. 

THE DEFENDANT: Yes. I don’t want to have him. I’m saying I 

don’t want somebody to be appointed for me. 

THE COURT: All right. But you understand that if you couldn’t 

afford a lawyer the Court would appointment [sic] a lawyer to 

represent you. Do you understand that?

THE DEFENDANT: Yes. 

Id. at 8-9. Then, the court stated, “Sir, if you decide to proceed without 

counsel, do you understand that you will be bound by all normal rules and 

procedures for a trial such as this? Do you understand that?” Id. at 9. 

Appellant represented that he understood that information. Id. at 10. 

The court informed Appellant next that there were “certain advantages 

to being represented by counsel and those advantages are having a 

professional who has had years of experience with trials such as this and 

having a professional argue the law and evidence both orally and in written 

memorandums [sic].” Id. at 11. Appellant said that he understood that 
J-S12002-15

- 9 -

there was an advantage to having a lawyer represent him and that “by 

proceeding without counsel,” he would relinquish those advantages. Id. 

The court also asked, “Do you understand that if an issue is not raised 

during this trial or if it is not raised in a proper manner it may be waived and 

you may not ever be able to raise it again?” as well as, “And you understand 

that you are stuck with whatever mistakes you make while you’re 

representing yourself.” Id. at 12. Appellant responded that he understood. 

Finally, the court ascertained that no one was forcing or threatening 

Appellant to relinquish his right to be represented by Mr. Fleury and that 

nothing was promised to him in exchange for his waiver of counsel. The 

colloquy concluded. 

Thus, the record reveals that the trial court properly determined that 

Appellant was able to understand the questions posed to him during the 

colloquy. The record also demonstrates that, as required by Pa.R.Crim.P. 

121(A)(2)(a), Appellant was told that he possessed the right to be 

represented by court-appointed counsel. Additionally, the trial court, as 

required by Pa.R.Crim.P. 121(A)(2)(d), clarified to Appellant that he would 

be bound by all the normal rules of procedure and that counsel would be 

familiar with these rules. 

However, the court only tangentially touched on the subject matter 

outlined in 121(A)(2)(e) and (f). The court did explain that Appellant could 

waive issues and would be bound by his own missteps, but the court failed 
J-S12002-15

- 10 -

to specify that there were possible defenses to the charges, of which counsel 

might be aware, and that those defenses would be permanently lost if not 

raised at trial. Similarly, it did not set forth that, in addition to defenses, 

Appellant had many rights that, if not timely asserted, might be permanently 

lost. Finally, the court did not comply to any extent with Pa.R.Crim.P. 

121(A)(2)(b) and (c) in that it did not discover either if Appellant understood 

the nature and elements of the charges or if Appellant was aware of the 

permissible range of sentences and/or fines. 

We recently addressed whether a waiver of counsel was valid in 

Commonwealth v. Phillips, 93 A.3d 847 (Pa.Super. 2014). Therein, the 

defendant was appointed counsel and, after becoming dissatisfied with his 

representation, asked to proceed pro se. The defendant was colloquied

three times: at the hearing on his motion to proceed pro se, before his 

suppression hearing, and at trial just prior to jury selection. During the first 

colloquy, the court neither outlined the elements of the crimes nor informed 

the defendant that there were certain defenses that would be lost if not 

raised. At the second colloquy, the court merely told the defendant that if 

he waived counsel, he would still be bound by all the applicable rules of 

procedure, with which counsel would be familiar. Finally, at the trial 

colloquy, the court did not ensure that the defendant understood the 

permissible range of sentences for the charged offenses. In all three 
J-S12002-15

- 11 -

instances, each court neglected to ascertain the defendant’s age, educational 

background, or comprehension abilities. 

We held, “Failure to conduct a thorough on-the-record colloquy before 

allowing a defendant to proceed to trial pro se constitutes reversible error.” 

Id. at 853. We noted that, in this context, we are not permitted to apply a 

totality of the circumstances analysis. We ruled that since the oral 

colloquies in question were all inadequate in some respect, the defendant did 

not validly waive counsel, and his convictions had to be reversed. 

Likewise, in Commonwealth v. Clyburn, 42 A.3d 296 (Pa.Super. 

2012), we reversed and remanded for a new trial where the trial court did 

not conduct a Pa.R.Crim.P. 121-compliant colloquy before allowing the 

defendant to proceed pro se. Therein, the defendant signed a written form 

examining most areas that must be covered under the law, but it did not 

outline the nature and elements of each offense charged against the 

defendant. The same deficit occurred during the oral colloquy, where the 

crimes were merely listed and the focus was on the grading and range of 

sentences. Since neither the written form nor oral colloquy apprised the 

defendant of the nature and elements of each charge leveled against her, we 

concluded that the waiver colloquy was defective. See also 

Commonwealth v. Payson, 723 A.2d 695, 701 (Pa.Super. 1999) (“The law 

is now clear that the trial judge must conduct the colloquy [required by the 
J-S12002-15

- 12 -

rules of criminal procedure] and in doing so must formally question the 

defendant on the six listed areas.”). 

In this case, the colloquy completely omitted two areas of inquiry: an 

explanation of the nature and elements of the crime and the permissible 

range of sentences. The trial court also failed to fully cover the waiver 

problem involved with self-representation. Appellant never was told that, by 

proceeding pro se, he could forfeit defenses and rights about which his 

lawyer would be versed. Hence, counsel on appeal has incorrectly asserted 

that Appellant validly waived his right to counsel at trial and cannot be 

permitted to withdraw. 

Since Appellant is unequivocally entitled to relief, it is unnecessary to 

remand for the filing of a merits brief. To do so would merely delay this 

matter further. Instead, we vacate the judgment of sentence and remand 

for a new trial. Commonwealth v. Goodenow, 741 A.2d 783, 

788 (Pa.Super. 1999) (counsel seeking to withdraw under Anders

incorrectly asserted that defendant had no grounds to withdraw guilty plea; 

presentence request to withdraw guilty plea should have been granted under 

controlling case law; rather than require counsel to file a merits brief, we 

vacated defendant’s judgment of sentence and remanded for appointment of 

new counsel). 
J-S12002-15

- 13 -

The Petition to Withdraw filed by Owen W. Larrabee, Esquire is denied. 

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2015