J-S16022-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWIN ROY SHOWALTER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1457 MDA 2018

Appeal from the PCRA Order Entered July 31, 2018

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0003661-2015

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 09, 2019

Edwin Roy Showalter (Appellant) appeals from the order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. 

§§ 9541-9546. We affirm.

A prior panel of this Court summarized the relevant facts and procedural 

history of this case as follows:

On April 19, 2015, [Appellant] entered Harbor Freight in York 

County to return an item he had purchased. A dispute arose as 

to the amount of the refund. Stephany Nicholson, a cashier at the 

store, testified that [Appellant] then left the store, but he returned 

shortly after that dispute to make a purchase. This time, however, 

[Appellant] was shouting, and Nicholson noticed he was agitated 

and invading her “personal space.” N.T. Jury Trial, 7/12/16, at 

93. [Appellant] left the store again, and returned a third time, 

just before closing time. Nicholson testified that [Appellant] was

“trying to come behind the registers with his fists balled and made 

[the employees] feel threatened[.]” Id. at 83-84. Nicholson 

testified [Appellant] was acting combative, and this time he lifted 

his shirt and exposed a handgun, which was tucked inside his 

waistband. Another store clerk, Elizabeth Spells, testified that at 

the time [Appellant] lifted up his shirt he said something to the 
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effect of, “[T]this is what I can do to you.” Id. at 94. [Appellant]

then left the store.

* * *

[Appellant] was charged with two counts each of simple assault 

and harassment, and one count of disorderly conduct. At a 

pretrial conference, represented by [an] Assistant Public Defender 

. . ., [Appellant] indicated he wished to represent himself. The 

court was not satisfied that [Appellant] was willing to waive his 

right to counsel. Thereafter, at [Appellant]’s request, the public 

defender filed a motion to withdraw. On February 2, 2016, the 

court held a hearing on the motion to withdraw and conducted a 

full waiver colloquy. See Pa.R.Crim.P. 121. The court permitted 

the public defender to withdraw, allowed [Appellant] to represent 

himself, and appointed [the public defender] as standby counsel.

Following trial, . . . [t]he jury convicted [Appellant] of two 

counts of simple assault, and the court found him guilty of the 

summary offense of disorderly conduct. [Appellate Counsel] 

entered his appearance. The court sentenced [Appellant] to an 

aggregate term of 9 to 23 months [of] imprisonment, followed by 

12 months [of] probation. Post-sentence motions were filed and 

denied.

Commonwealth v. Showalter, 1805 MDA 2016 at 1-4 (Pa. Super. Aug. 29, 

2017) (unpublished memorandum; footnotes omitted).

The PCRA court set forth the remaining procedural history:

On October 27, 2016, [Appellant], through counsel, filed a 

notice of appeal to the Superior Court. On August 27, 2017, the 

Superior Court affirmed [Appellant]’s judgment of sentence at 

1805 MDA 2016. On October 2, 2017, [Appellant] filed a petition 

for allowance of appeal to the Pennsylvania Supreme Court. On 

March 29, 2018, the Pennsylvania Supreme Court denied

[Appellant]’s appeal.

On May 21, 2018, [Appellant], through counsel, . . . filed a 

[PCRA petition]. On June 20, 2018, [Appellant] filed an amended 

petition for [PCRA] relief. On July 31, 2018, [the PCRA court] held 

a hearing on [Appellant]’s petition and issued an order denying 

post-conviction relief to [Appellant].
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On August 29, 2018, [Appellant] filed a notice of appeal to the 

Superior Court. On th[e] same date, [the PCRA court] issued an 

order directing the [Appellant] to file a Concise Statement of 

Matters Complained of on Appeal pursuant to Pennsylvania Rule 

of Appellate Procedure 1925(b). On September 19, 2018, 

[Appellant] filed the 1925(b) Statement.

PCRA Court Opinion, 11/7/18, at 2-3.

On appeal, Appellant presents a single issue for our review:

A. WHETHER THE TRIAL COURT ERRED IN DENYING POSTCONVICTION RELIEF BASED UPON PREVIOUS APPELLATE 

COUNSEL FAILING TO ADEQUATELY LITIGATE VIOLATIONS OF 

THE SIXTH AMENDEMENT TO THE UNITED STATES 

CONSTITUTION, ARTICLE I, SECTION 9 OF THE PENNSYLVANIA 

CONSTITUTION, AND PENNSYLVANIA RULE OF CRIMINAL

PROCEDURE 121 FOR FAILING TO ARGUE THAT THE TRIAL 

COURT, OR COUNSEL, DID NOT ESTABLISH ON THE RECORD 

THAT APPELLANT UNDERSTOOD PROVISIONS OF PENNSYLVANIA 

RULE OF CRIMINAL PROCEDURE 121 AND THEREFORE, 

KNOWLINGLY, INTELLEGENTLY AND VOLUNTARILY WAIVE[D] HIS 

RIGHT TO COUNSEL?

Appellant’s Brief at 7.

We review the denial of PCRA relief by “examining whether the PCRA 

court’s findings of fact are supported by the record, and whether its 

conclusions of law are free from legal error.” Commonwealth v. Busanet, 

54 A.3d 35, 45 (Pa. 2012). “Our 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 party who prevailed in the PCRA court proceeding.” Id.

We begin by recognizing:

To be eligible for relief under the PCRA, [a pcra petitioner] must 

prove by a preponderance of the evidence that his conviction or 

sentence resulted from one or more of the enumerated 
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circumstances found in Section 9543(a)(2) (establishing the bases 

for relief). These circumstances include . . . ineffective assistance 

of counsel that “so undermined the truth-determining process that 

no reliable adjudication of guilt or innocence could have taken 

place.” 42 Pa.C.S. § 9543(a)(2)[(ii)]; Commonwealth v. 

Blakeney, 108 A.3d 739, 749 ([Pa.] 2014). [A pcra petitioner]

also must demonstrate that the issues included in his PCRA 

petition have not been previously litigated or waived. 42 Pa.C.S. 

§§ 9543(a)(3), 9544(a)-(b) (defining circumstances that lead to 

waiver and a finding that a claim is previously litigated).

Commonwealth v. Crispell, 193 A.3d 919, 927–28 (Pa. 2018).

Appellant’s sole issue on appeal challenges the effectiveness of 

Appellate Counsel. In deciding ineffective assistance of counsel claims, we 

begin with the presumption that counsel rendered effective assistance. 

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome 

that presumption, the petitioner must establish: “(1) the underlying claim has 

arguable merit; (2) no reasonable basis existed for counsel’s action or failure 

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error, 

with prejudice measured by whether there is a reasonable probability that the 

result of the proceeding would have been different.” Id. (citation omitted). 

To demonstrate prejudice in an ineffective assistance of counsel claim, “the 

petitioner must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the 

petitioner fails to prove any of these prongs, the claim is subject to dismissal. 

Bomar, 104 A.3d at 1188.
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Appellant argues that Appellate Counsel was ineffective for failing to 

properly litigate, on appeal, his claim that Appellant did not knowingly, 

voluntarily, and intelligently waive his right to counsel at trial. Appellant 

asserts that Appellate Counsel failed to argue “that Appellant gave no

responses to the pertinent inquiries of the trial court from which a conclusion 

could be drawn that he understood any of the [t]rial [c]ourt’s questions and 

any of the information that must be elicited from him before [trial] counsel 

could be given permission to withdraw.” Appellant’s Brief at 18. Appellant 

contends that Appellate Counsel improperly limited his argument on direct 

appeal to “the context of the Appellant not being properly advised of the 

sentencing issues in the case.” Id. at 19. Appellant further asserts that the 

record demonstrates that he “did not understand” any of the necessary criteria 

for waiving his right to counsel under Pennsylvania Rule of Criminal Procedure 

121(A)(2). Id. at 18. Appellant maintains that “it was readily apparent that 

Appellant was not mentally capable of defending himself at trial.” Id.

Upon review, we conclude that this issue does not merit relief. Appellant 

purports to challenge Appellate Counsel’s ineffectiveness with respect to 

Appellant’s claim on direct appeal regarding whether he properly waived his 

right to counsel before the trial court. Appellant’s arguments, however, 

amount to nothing more than an attempt to re-litigate the waiver of counsel 

claim he previously raised before this Court.
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The Superior Court rejected Appellant’s waiver of counsel claim on direct 

appeal, stating:

Pennsylvania Rule of Criminal Procedure 121 provides the 

framework and minimum guidelines for the waiver colloquy to 

ensure that the defendant’s waiver is knowing, voluntary and 

intelligent. See Pa.R.Crim.P. 121(A)(1), (2); see also

Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).

Pursuant to Rule 121, the court must ensure:

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 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 those 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)(2).

* * *

The court advised [Appellant] that he could hire private 

counsel, be appointed counsel if he were indigent, or represent 
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himself. [N.T., 2/23/16, at 5]. The court advised [Appellant] of 

the fact that if he chose to represent himself he would be bound 

by the same rules of law as an attorney. Id. at 12. The court 

also determined that [Appellant] was not under the influence of 

anything that would interfere with his ability to understand the 

waiver proceeding, and that [Appellant] was not forced, 

threatened or promised anything in return for giving up his right 

to an attorney. Id. at 12, 17-18. [Appellant] ultimately agreed 

to have the assistance of the public defender as standby counsel, 

and he indicated that he understood that standby counsel would 

only give advice if he asked for it. Id. at 10.

Additionally, we find that [Appellant]’s statements during the 

colloquy, that the charges were “false charges,” id. at 4, or that 

he did not “understand these charges at all[,]” id. at 10, does not 

establish that he did not understand the nature of the charges 

against him. . . . [A]t the pretrial conference, the court had read 

[Appellant] the charges against him, and explained to him that he 

could request a Bill of Particulars if he needed additional 

information about the nature of the charges. N.T., Pretrial 

Conference, 12/17/15, at 4-5. The trial court did acknowledge 

that it did not state the permissible range of sentences and/or 

fines for the offenses charged verbatim, see Pa.R.Crim.P. 

121(A)(2)(c), but the court ensured that [Appellant] had access 

to the guidelines ranges and the maximum sentences applicable 

to the offenses charged. N.T. Post-Sentence Hearing, 10/24/16, 

at 5; N.T. Hearing on Motion to Withdraw/Waiver Colloquy, 

2/23/16, at 18.

After our review, we find the court’s conclusion that [Appellant]

knowingly, intelligently and voluntarily waived his right to counsel 

is supported in the record. See Commonwealth v. Starr, 664 

A.2d 1326 (Pa. 1995); see also Commonwealth v. El, 977 A.2d 

1158 (Pa. 2009) (where defendant knowingly, voluntarily, and 

intelligently seeks to waive Sixth Amendment right to counsel, 

trial court must allow individual to proceed pro se). We agree with 

the trial court’s assessment that [Appellant] understood the 

implications of his decision to represent himself.

Showalter, 1805 MDA 2016 at 5-9 (footnote omitted).

Our review of the record, law and the previous decision of this Court

demonstrates that Appellant previously litigated his issue relating to waiver of 
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his right to counsel. Not only did this Court conclude that Appellant knowingly, 

voluntarily, and intelligently waived his right to counsel, but it did so while 

taking into consideration all of the criteria under Rule 121(A)(2) that Appellant 

now claims on collateral review that this Court and the trial court did not

consider. Even if Appellant were correct that Appellate Counsel improperly 

limited his arguments relating to Appellant’s waiver of counsel claim, Appellant 

cannot establish that he was prejudiced by Appellate Counsel’s tactics, as the 

Superior Court’s decision on direct appeal reflects that it reviewed all of the 

necessary criteria under Rule 121(A)(2), and determined that Appellant 

knowingly, voluntarily, and intelligently waived his right to counsel. See id. 

Because Appellant previously litigated the issue he raises before this Court, 

we conclude that the PCRA court did not abuse its discretion in dismissing his 

PCRA petition. See 42 Pa.C.S.A. §§ 9543(a)(3), 9544(a)(2).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/09/2019