J-S26042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: GILLESPIE, BRYAN EUGENE 

COST CONTEMPT CASE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1110 MDA 2021

Appeal from the Order Entered July 21, 2021

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

CP-67-MD-0001794-2020

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STEVENS, P.J.E.: FILED: SEPTEMBER 22, 2022

Bryan E. Gillespie appeals from the July 21, 2021 order finding him in 

contempt of court and sentencing him to 30 days’ imprisonment, with an 

ability to purge by paying $500.00, following his willful and intentional failure 

to pay court-ordered fines and costs and his February 4, 2021 perpetration of 

fraud upon the court, when he falsely reported that he lived in the 600 block 

of Manor Street in the City of York. For the reasons that follow, we vacate the 

order and remand for proceedings consistent with this judgment order. 

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* Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history of this case were set forth by 

the trial court in its December 20, 2021 opinion and need not be reiterated 

here. See trial court opinion, 12/20/21 at 2-4. 

Appellant argues that “the trial court violated [his] right to counsel ... by 

proceeding [at the July 21, 2021 contempt hearing] with no counsel present 

and without a waiver of counsel.” Appellant’s brief at 16. In support of this 

contention, Appellant relies on this Court’s decisions in Commonwealth v. 

Diaz, 191 A.3d 850 (Pa.Super. 2018), and Commonwealth v. Mauk, 185 

A.3d 406 (Pa. Super. 2018). Appellant’s brief at 17-18.

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The trial court, in turn, agrees with Appellant that it erred in denying 

Appellant’s right to counsel and concedes that its contempt order should be 

vacated on this basis. Specifically, the trial court first finds that it failed to 

conduct a proper waiver colloquy under Pa.R.Crim.P. 121(A)(2),

2 and its 

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1 Notably, the Commonwealth has not filed a brief in this matter.

2 Rule 121(A)(2) provides as follows:

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;

(Footnote Continued Next Page)
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notice to Appellant reminding him of his right to counsel was inadequate. Trial 

court opinion, 12/20/21 at 6. The trial court further concludes that Appellant 

should have been afforded legal representation at the July 21, 2021 contempt 

hearing, pursuant to Diaz and its progeny. Id. at 7.

Following our careful review, we agree. This Court has recognized that 

“[t]he right to counsel extends not only to certain summary proceedings, at 

trial, guilty plea hearings, sentencing, but also to every critical stage of a 

criminal proceeding[,]” including contempt hearings. Commonwealth v. 

Fill, 202 A.3d 133, 138 (Pa.Super. 2019) (citations and internal quotation 

marks omitted). 

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(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.

Pa.R.Crim.P. 121(A)(2).
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In Diaz, a panel of this Court vacated an incarceration order of an 

indigent defendant found in civil contempt for failure to pay fines and costs. 

Diaz, 191 A.3d at 852. The Diaz Court held:

an indigent defendant’s right to court-appointed 

counsel is triggered in any proceeding in which the 

court finds there is a likelihood of imprisonment. 

Thus, we hold that upon the trial court’s determination 

at the civil contempt hearing that there is a likelihood 

of imprisonment for contempt and that the defendant 

is indigent, the court must appoint counsel and 

permit counsel to confer with and advocate on 

behalf of the defendant at a subsequent hearing.

Id. at 862 (footnote omitted; emphasis added). 

Likewise, in Mauk, this Court held that “if imprisonment is a possibility, 

each defendant must have a timely opportunity to consult with counsel, i.e., 

before he appears before the judge.” Mauk, 185 A.3d at 412.

Based on the foregoing, we agree with the trial court and Appellant that 

he should have been afforded counsel in this matter. Accordingly, we vacate 

the trial court’s July 21, 2021 contempt order and remand for proceedings 

consistent with this judgment order.3

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

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3

In light of our disposition, we need not address Appellant’s remaining claims 

of trial court error.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/22/2022