J-A04045-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

RALPHEL BERRIEN, III 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 1685 EDA 2022 

Appeal from the Order Entered June 5, 2018 

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

No(s): CP-39-CR-0001132-2017 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

RALPHEL BERRIEN, III 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 2345 EDA 2022 

Appeal from the Order Entered June 5, 2018 

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

No(s): CP-39-CR-0001131-2017 

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JUNE 17, 2024 

 Appellant, Ralphel Berrien, III, appeals nunc pro tunc from the 

judgments of sentence imposed by the Lehigh County Court of Common Pleas, 

after a jury found him guilty of stalking and harassment1 at CP-39-CR-

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 18 Pa.C.S. §§ 2709.1(a)(2) and 2709(a)(7), respectively. 
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0001131-2017, and criminal trespass2 at CP-39-CR-0001132-2017. He 

claims that the trial court erred in allowing him to proceed pro se for trial, 

where he lacked the financial means to retain private counsel, and by failing 

to conduct an on-the-record colloquy concerning the waiver of his right to 

counsel pursuant to Pa.R.Crim.P. 121. Upon careful review, we affirm. 

 Since Appellant’s lone claim on appeal alleges a trial court error claim 

involving pre-trial procedures, a summary of the facts presented at trial is 

unnecessary for our review. We thus address the procedural history of the 

matter. Counsel from the Lehigh County Public Defender’s Office represented 

Appellant beginning with the entry of an appearance on April 26, 2017. That 

counsel (Attorney Ritter) was permitted to withdraw from representation on 

June 6, 2017. Appellant subsequently retained private counsel (Attorney 

Neely) who entered his appearance on June 27, 2017. Within three months, 

that attorney was permitted to withdraw from representation after a 

breakdown in their “communication lines” with Appellant. Counsel Withdrawal 

Motion, 9/7/17, ¶ 3; Order, 9/12/17, 1. Appellant then unsuccessfully 

litigated pre-trial motions pro se and, on January 9, 2018, the court appointed 

standby counsel (his originally appointed counsel, Attorney Ritter). Order, 

1/9/18, 1. Appellant proceeded to trial and a jury found him guilty of the 

above-referenced offenses on April 26, 2018. 

____________________________________________ 

2

 18 Pa.C.S. § 3503(a)(1)(i). 
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On June 5, 2018, the court sentenced Appellant to an aggregate term 

of 58 to 120 months’ imprisonment.3 The trial court appointed counsel on the 

day after sentencing and Appellant thereafter litigated a timely-filed postsentence motion that the court denied on June 20, 2018. While still 

represented by counsel, Appellant filed a timely, pro se notice of appeal. 

Appellant later requested the withdrawal of his newly appointed counsel, and 

the trial court granted that request after a hearing on October 11, 2018. On 

October 1, 2019, this Court quashed Appellant’s pro se direct appeal due to 

non-compliance with the then-recent Pennsylvania Supreme Court decision in 

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that the 

common practice of filing a single notice of appeal from an order involving 

more than one docket would no longer be tolerated and that practice violated 

Pa.R.A.P. 341, which required the filing of separate appeals from an order that 

involves issues arising on more than one docket; failure to file separate 

appeals generally requires an appeal court to quash appeal).4 See 

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3

 The aggregate sentence included forty to eighty-four months’ imprisonment 

for stalking and a concurrent term of six to twelve months’ imprisonment for 

harassment at CP-39-CR-0001131-2017, to be followed by a consecutive term 

of eighteen to thirty-six months’ imprisonment for criminal trespass at CP-39-

CR-0001132-2017. 

4

 Our Supreme Court has since held, in Commonwealth v. Young, 265 A.3d 

462, 477 n.19 (Pa. 2021), that quashal is not mandatory where the appellant 

fails to comply with Walker. Instead, as long as the appeal is timely, we may 

permit the appellant to correct the error. Additionally, following Walker and 

Young, Pa.R.A.P. 902 was amended to align with the holdings in those 

decisions. See Pa.R.A.P. 902(a)-(b). 
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Commonwealth v. Berrien, No. 2059 EDA 2018, 2019 WL 4864145, *2 (Pa. 

Super., filed Oct. 1, 2019) (unpublished memorandum). 

 On October 17, 2019, Appellant timely filed a pro se petition for 

collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 

9541-9546. Counsel was appointed and, on March 4, 2020, filed a motion to 

withdraw along with a Turner/Finley no-merit letter.5 After the PCRA court 

issued notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907, 

the court granted the counsel withdrawal motion, Appellant filed a pro se

response, and the court dismissed the petition on April 29, 2020. Appellant 

filed timely pro se notices of appeal in each of his underlying criminal matters 

and we consolidated the resulting appeals sua sponte. On June 8, 2022, we 

found that Appellant’s counsel who was appointed during the post-sentence 

motions period provided ineffective assistance by not filing amended notices 

of appeal to perfect a direct appeal for Appellant. Commonwealth v. 

Berrien, No. 1208 EDA 2020, 2022 WL 2063646, *4 (Pa. Super., filed June 

8, 2022) (unpublished memorandum). We thus vacated the order denying 

PCRA relief and remanded for the reinstatement of Appellant’s direct appeal 

rights nunc pro tunc. Id. On August 16, 2022, the PCRA court ordered the 

reinstatement of Appellant’s direct appeal rights nunc pro tunc and granted a 

new request from Appellant for the appointment of counsel. 

____________________________________________ 

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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 Before and after the PCRA court’s further action on remand, Appellant 

filed a pro se notice of appeal on June 21, 2022, and a counseled notice of 

appeal on September 13, 2022, that initiated the instant appeals. The PCRA 

court issued an order pursuant to Pa.R.A.P. 1925 on September 15, 2022. On 

October 10, 2022, Appellant attempted to file a pro se concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which is a 

nullity for our purposes because he had counsel of record at that time.6 

 On November 16, 2022, we issued separate rule to show cause orders 

in each of these appeals. At docket number 1685 EDA 2022, we pointed out 

that the pro se notice of appeal was seeking to appeal our former unpublished 

memorandum in which we vacated the denial of PCRA relief and ordered a 

remand for the reinstatement of Appellant’s direct appeal rights nunc pro tunc, 

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6

 We note that, as appreciated by the trial court in its order on December 2, 

2022, Appellant failed to file a counseled response to the court’s September 

15, 2022 order pursuant to Rule 1925. Order, 12/5/22, 1. Ordinarily, when 

a counseled defendant fails to file a court-ordered concise statement of errors 

complained of on appeal, this Court “may remand for appointment of new 

counsel, the filing or service of a Statement nunc pro tunc, and the preparation 

and filing of an opinion of a judge.” Pa.R.A.P. 1925(c)(3). We decline to 

remand for further proceedings because the trial court originally addressed 

Appellant’s pre-trial forfeiture of his right to counsel in its opinion filed for 

Appellant’s original direct appeal that was quashed and the court’s analysis 

provides its rationale for not conducting a colloquy pursuant to Pa.R.Crim.P. 

121, which is the focus of the instant appeal. See Trial Court Opinion, 

11/27/18, 15-17. We also decline to remand for Rule 1925 non-compliance 

as a remand would suit no purpose where the trial court’s former opinion is 

adequate to inform our present review. Moreover, the Commonwealth has 

not sought waiver on the basis of Rule 1925 non-compliance and the present 

assigned jurist for the lower court is not the same judge who sat as the trial 

court. See Appellee’s Brief at 1 n.1 (referring to the trial court’s 2018 

opinion). 
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and that the notice of appeal was not in compliance with Walker. At docket 

number 2345 EDA 2022, we pointed out that the counseled notice of appeal 

was seeking to appeal the PCRA court’s order that reinstated Appellant’s direct 

appeal rights nunc pro tunc, it did not list the appropriate trial court docket 

number for CP-39-CR-0001131-2017, and it was not in compliance with 

Walker. 

 Appellant filed a pro se response to the rule to show cause order at 

docket number 1685 ED 2022 and a counseled response to the other order at 

docket number 2345 EDA 2022. In the latter response, counsel requested 

leave of court to allow Appellant to amend the notice of appeal to reflect the 

original sentencing order as the order on appeal. Answer to Rule to Show 

Cause, 11/23/22, 2. Counsel asked for the “appeal under 2345 EDA 2022 to 

proceed under trial court docket number CP-39-CR-0001131-2017 only.” Id.

2-3. This Court issued orders finding that both notices of appeal did not 

comply with Walker. In light of Young, we directed Appellant to file two 

amended notices of appeal in the trial court. Counsel filed amended notices 

of appeal on January 23, 2023. On April 10, 2023, this Court permitted the 

attorney who filed the amended notices of appeal to withdraw from 

representation. After the appointment of another attorney, present counsel 

was appointed. Order, 5/3/23, 1. 

 Appellant subsequently filed an application to proceed pro se which 

caused present counsel to file an application to withdraw which additionally 

requested a vacation of Appellant’s briefing schedule. Before there was any 
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ruling on those applications, counsel filed the Brief for Appellant that is 

currently pending. Based on the filing of the brief, this Court denied counsel’s 

application to withdraw and forwarded intervening pro se attempted filings to 

counsel.7 Order 7/10/23, 1. 

 Appellant presents the following question for our review: 

Where the Appellant does not have the financial wherewithal to 

obtain private counsel, is he entitled to a new trial where the trial 

court erred in failing to conduct an on the record colloquy with him 

pursuant to Pa.R.Crim.P. Rule 121 to determine if his waiver of 

the right to counsel through all critical stages of a criminal 

proceeding was knowing, voluntary and intelligent? 

Appellant’s Brief at 4 (capitalization and suggested answer omitted). 

 Appellant alleges that the trial court erred by not conducting a waiver of 

counsel colloquy pursuant to Pa.R.Crim.P. 121, and violated his state and 

federal constitutional rights by leaving him as an indigent individual with “no 

option but to represent himself at trial without the benefit of being advised of 

the consequences and pitfalls of such a decision.” Appellant’s Brief at 14-22. 

He asserts that a waiver of counsel colloquy should have been conducted when 

he “fired” his initial appointed counsel and was told that he would need to 

either retain private counsel or proceed pro se. Id. at 17. 

 The trial court advises in its prior opinion that a claim that the court 

erred by denying Appellant the right to counsel and by compelling him to 

proceed pro se would fail as meritless because Appellant had forfeited the 

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7

 Prior to this appeal being placed on the current panel, we also denied a 

counseled application for bail pending appeal. Order, 10/26/23, 1. 
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right to counsel. Trial Court Opinion, 11/27/18, 15. The court elaborated on 

that point as follows: 

Here, contrary to Appellant’s assertions, the Appellant had the 

benefit of both public and private attorneys over the course of his 

legal proceedings. Appellant immediately became dissatisfied 

with his appointed counsel and fired him. Appellant was warned 

on the record that the Public Defender would not be available at 

any later stage. However, Appellant wanted the opportunity to 

seek a private lawyer and had the necessary funds to do so. 

Appellant, again, became dissatisfied with private counsel as it 

seemed no attorney could live up to the standards set by 

Appellant. After a review of the record, it is clear that Appellant 

had ample opportunity find counsel of his choosing. Appellant’s 

behavior over the course of eleven (11) months is sufficiently 

disruptive to mandate a conclusion of extremely dilatory conduct. 

This is further supported by Appellant’s pro se actions. When it 

became clear that Appellant could not find a suitable attorney he 

proceeded to represent himself pro se through an endless 

bombardment of pre-trial motions. Although the Court addressed 

each motion raised by Appellant, he continued to raise the same 

issues in an effort to delay. Finally, the Court informed Appellant 

that his trial would be scheduled regardless and he filed numerous 

premature appeals. Therefore, the Court did not err in finding 

that Appellant forfeited his right to counsel. 

Id. at 16-17 (footnote and citations omitted). Upon finding that Appellant 

waived his right to counsel through extreme dilatory conduct, the trial court 

relied on, inter alia, our Supreme Court’s opinion in Commonwealth v. 

Lucarelli, 971 A.2d 1173, 1179-80 (Pa. 2009) (holding that Pa.R.Crim.P. 121 

and its colloquy requirements do not apply to situations where forfeiture of 

counsel is found and that Lucarelli’s behavior over an 8.5 month span “was 

sufficiently obstructive to mandate a conclusion of forfeiture because he 
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engaged in extremely dilatory conduct”). Trial Court Opinion, 11/27/18, 16-

17. 

 Appellant points out that the forfeiture by extremely dilatory conduct 

holding of Lucarelli explicitly applies to defendants with the financial means 

to privately retain counsel. Appellant’s Brief at 18, citing Lucarelli, 971 A.2d 

at 1179 (“We hold today that where a defendant’s course of conduct 

demonstrates his or her intention not to seek representation by private 

counsel, despite having the opportunity and financial wherewithal to do so, a 

determination that the defendant be required to proceed pro se is mandated 

because that defendant has forfeited the right to counsel.”) (quote partially 

stated in brief; emphasis added). He thus distinguishes the applicability of 

that case based on his alleged indigency prior to trial. He notes that he 

remained continually incarcerated for almost a year leading up to the 

commencement of his trial, he stated to the court that he lacked the resources 

to privately retain counsel, and his former private counsel had been paid by 

his father. Appellant’s Brief at 19-20. He faults the trial court for not inquiring 

into his professed lack of financial resources or making accommodations to 

his bail to allow him to access funds to secure counsel. Id. at 20. He also 

suggests that the trial court further hampered his ability to retain counsel by 

calling him a “problematic client.” Id. at 20 & n.2, citing N.T. 6/6/17, 6. 

 The Commonwealth as appellee asserts that a colloquy under Rule 121 

only would have been appropriate if Appellant had sought to waive counsel 
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and instead the trial court “appropriately deemed” that he “forfeited his right 

to counsel.” Appellee’s Brief at 14. The Commonwealth argues: 

The trial court correctly ruled that Appellee forfeited his right to 

counsel. During the course of these proceedings, which lasted 

nearly fifteen (15) months, Appellant was represented by both 

publicly-funded and privately-hired attorneys. Appellant was 

never able to engage in a productive relationship with his 

attorneys because he simply did not want to hear what he did not 

want to hear. He even went as far as asking his privately-funded 

attorney to engage in actions that the attorney described as 

“unethical.” After Attorney Neely withdrew as counsel, Appellant 

requested additional time at several status conferences so that he 

could secure private counsel. This, along with a multitude of pro 

se court filings and premature appellate filings, many of which 

were duplicative and not served on the Office of the District 

Attorney, served no purpose other than to thwart the state’s 

efforts to effectively administer justice. The alleged victim... had 

to wait more than a year to see her stalker’s case brought to a 

conclusion. 

Appellant had the opportunity to be represented by a competent, 

publicly-funded, court-appointed attorney, but chose to terminate 

Attorney Ritter’s representation after being advised that he was 

thereby giving up representation through the public defendant’s 

office. While Appellant had the right to be represented by counsel, 

that right does not extend to counsel of his own choosing, or 

counsel who will blindly do Appellant’s bidding. 

Appellee’s Brief at 22-23 (footnote omitted). 

 In response to the Commonwealth’s argument, Appellant notes that the 

trial court misadvised him as to his right to appointed counsel at times when 

the court should have conducted a colloquy pursuant to Rule 121. Appellant’s 

Reply Brief at 3-4, citing N.T. 6/6/17, 5-6, and N.T. 11/01/17, 2. As for his 

supposed dilatory conduct, Appellant asserts that his pro se pre-trial motions 
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did not cause delay because the trial court “simply ignored them” and that he 

never actually delayed the scheduled trial date. Appellant’s Reply Brief at 5. 

 The question of a whether a trial court committed an error by applying 

the doctrine of forfeiture of the right to counsel presents a pure question of 

law for which we apply a de novo standard of review. Lucarelli, 971 A.2d at 

1178. 

 Those accused of crimes have a right to the assistance of counsel. U.S. 

Const. Amend. VI; Pa. Const. Art. I, § 9. The 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.” 

Commonwealth v. Johnson, 158 A.3d 117, 122 (Pa. Super. 2017), quoting 

Commonwealth v. Phillips, 83 A.3d 847, 853 (Pa. Super. 2014). The right 

to counsel “is not absolute.” Lucarelli, 971 A.2d at 1178. A criminal 

defendant can waive or forfeit the right to counsel. Id. at 1179-89; see also 

Pa.Crim.P. 121(a). 

 In Lucarelli, our Supreme Court explained that waiver is “an intentional 

and voluntary relinquishment of a known right.” Id., 971 A.2d at 1179 

(quoting United States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir. 1995)). 

On the other hand, forfeiture does not require any intent to relinquish a right, 

but rather arises from a defendant’s “extremely serious misconduct” or 

“extremely dilatory conduct.” Lucarelli, 971 A.2d at 1179 (citations omitted). 

Accordingly, the requisite of a colloquy to ensure that the defendant’s waiver 

of the right to counsel is made knowingly, voluntarily, and intelligently does 
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not apply to circumstances where forfeiture is found. Id. While Appellant 

claims that the trial court erred by not conducting a waiver of counsel colloquy 

pursuant to Pa.R.Crim.P. 121, the focus of our review should be whether the 

record supported the trial court’s finding of a forfeiture of the right to counsel 

as a proper finding of forfeiture relieved the trial court of its obligation to 

conduct a waiver colloquy. Id. at 1179 (“we now hold, Pa.R.Crim.P. 121 and 

its colloquy requirements do not apply to situations where forfeiture is found”). 

 The defendant in Lucarelli failed to retain counsel despite having more 

than eight months to prepare for trial and the financial means to hire an 

attorney. Lucarelli, 971 A.2d at 1176-77. He had privately retained counsel 

on multiple occasions, but the trial court allowed counsel to withdraw when 

the attorney-client relationship deteriorated. Id. Five weeks before trial, the 

trial court gave Lucarelli access to funds to retain counsel, but he failed to do 

so by the start of trial and had no explanation for not having done so. Id. 

Our Supreme Court concluded that Lucarelli engaged in “extremely dilatory 

conduct” supporting the forfeiture of his right to counsel. Id. at 1180. 

 Appellant, in the instant case, attempts to the distinguish Lucarelli and 

the application of the concept of forfeiture of the right to counsel by pointing 

out that he, unlike Lucarelli, lacked the “financial wherewithal” to just hire a 

new attorney. That distinction is unavailing as forfeiture of counsel has also 

been supported by extremely dilatory conduct by defendants who have been 

appointed counsel. For example, in Commonwealth Kelly, 5 A.3d 370, 373-

77, 381 (Pa. Super. 2010), the defendant was uncooperative with all three 
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attorneys appointed to represent him and argued that all three were 

incompetent because they refused to argue his view of the law. Id. at 381 

After the trial court allowed the first attorney to withdraw, when Kelly could 

not agree with the second lawyer, the court delayed trial a second time, 

appointed new counsel, and warned Kelly that failure to cooperate with the 

third lawyer would result in him proceeding pro se. Id. When Kelly asked the 

court to postpone the trial again and to appoint a fourth attorney, the trial 

court allowed the third attorney to withdraw but refused to appoint further 

counsel. Id. Under those circumstances, we had “no difficulty” affirming the 

trial court’s conclusion that the Kelly had conducted himself so as to forfeit his 

right to counsel. Id.

 Because forfeiture of the right to counsel may occur even with situations 

where a defendant has been appointed counsel, we must look to the 

circumstances of this case to evaluate whether Appellant engaged in 

extremely dilatory conduct that supported the lower court’s finding of 

forfeiture. See Commonwealth v. McClendon, 293 A.3d 658, 669 (Pa. 

Super. 2023) (“Our focus is upon a defendant’s conduct and not on the 

number of counsel that may lead to a forfeiture decision. The duration and 

persistence of the defendant’s dilatory conduct, and the delays occasioned 

thereby, can lead to forfeiture of counsel even though only one attorney was 

involved in the case.”). 

 At his arraignment on June 6, 2017, Appellant informed the trial court 

that he had “fired” his first attorney, David D. Ritter from the Lehigh County 
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Public Defender’s Officer, at his preliminary hearing because Attorney Ritter 

did not “have [his] best interests.” N.T. 6/6/17, 4-5. The court asked him if 

he wanted to continue with representation from Attorney Ritter and Appellant 

responded, “No, I don’t. I want -- for the second time I want him to be fired.” 

Id. at 5. The court then warned Appellant that if he proceeded to “fire” his 

appointed counsel that he would not get a subsequent appointment of 

counsel: 

THE COURT: Okay. So please understand that if you fire Mr. 

Ritter, then your choices are that you can find a private attorney 

or you can represent yourself. Do you understand that? 

[APPELLANT]: I understand that, Your Honor. 

THE COURT: Okay. And if you can’t find an attorney or you 

choose not to represent yourself, the public defendant’s office will 

not have you back. Do you understand? 

[APPELLANT]: Yes. 

THE COURT: All right. And is it correct that you do not wish to 

have Mr. Ritter represent you going forward? 

[APPELLANT]: No. He has -- he doesn’t have my best interests 

at all. 

Id. at 5-6. Prior to thereafter permitting Attorney Ritter to withdraw from the 

case, the court warned Appellant, based on the court’s prior experience8 with 

him, that he would have trouble finding counsel that would satisfy him: 

____________________________________________ 

8

 Appellant later summarized this prior experience, which included two prior 

criminal matters, as follows: “The first case was a plea deal, and the second 

case was a jury trial, in which [Appellant] appealed and filed a PCRA, in which 

[the court] ruled in [Appellant’s] favor.” N.T. 9/12/17, 4. 
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THE COURT: Mr. Berrien, if you were a person who was just 

before me for the first time, I would be urging you to consider Mr. 

Ritter, and I would be telling you what his duties are, and I would 

be urging you to reconcile with one another. 

But you and I have experience with one another, and I have to 

tell you, Mr. Berrien, that if I were a defense lawyer, I’d hide under 

my desk if the file were coming my way. Because you are what 

we call a problematic client. You don’t listen. You don’t want to 

take anyone’s advice. You know better than everybody else in the 

room. 

And so if you are certain that you no longer want Mr. Ritter, I’m 

sure he is happy to be relieved of you. But please know, this is 

not going to go smoothly for you because you are not going to 

find anybody who is going to be able to adequately represent you 

to your standards... 

Id. at 6-7. 

 Appellant then retained his second attorney, private counsel Craig B. 

Neely (Attorney Neely), to whom the court gave a 42-day continuance to 

review the discovery in the matter. N.T. 6/27/17, 2-3. After that continuance, 

the trial court scheduled a pretrial hearing for September 12, 2017. N.T. 

8/8/17, 2-3. On that date, the court considered a withdrawal motion filed by 

Attorney Neely. N.T. 9/12/17, 2. Attorney Neely informed the court that the 

motion was filed due to a breakdown in the attorney-client relationship arising 

both from conduct by Appellant that impeded counsel from proceeding in the 

matter and an inappropriate request that Appellant asked of him: 

[Attorney] Neely: Yes, Judge. When I accepted the 

representation of Mr. Berrien, I understood that some other 

counsel has had some difficulty with Mr. Berrien. I thought that 

under the circumstances, we would be able to have a decent 

attorney/client relationship. But as time has evolved, we have 
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been unable to have what I would consider a productive 

relationship. 

He has -- I can’t divulge things that he said to me, but clearly he 

indicated elements of my representation and, frankly, my 

character as a lawyer and called that into question. And, in fact, 

at one point asked me to do something that was improper and 

unethical. 

And, as a result, his behavior has seriously impaired my ability to 

act reasonably as his counsel under the rules that apply to me in 

doing my job, and I find that it’s not possible for me to continue 

to represent Mr. Berrien in these two cases. 

Id. at 2-3. Appellant did not object to the withdrawal request prior to the 

court granting it. Id. at 3. A trial date was not scheduled at that time as 

Appellant requested time to retain new counsel. Id. at 4. 

Appellant made further continuance requests for the purpose of seeking 

new counsel on October 17, 2017, and November 21, 2017. N.T. 10/17/17, 

2; N.T. 11/21/17, 2. On the latter date, Appellant informed the court that he 

“ran out of funds to raise to raise for an attorney because [he] was relying on 

a refund from [Attorney] Neely that [Attorney Neely had supposedly] 

promised [to Appellant’s] father.” N.T. 11/21/17, 2. Appellant asked for an 

appointment of counsel and the court replied, “Time I can give you. An 

attorney I can’t. I warned you ... when you released the public defender that 

that would be it. They won’t take you back. So if you need time, I’ll give you 

time.” Id.
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 At the next listing on January 9, 2018, Appellant litigated a pro se

motion for writ of habeas corpus. Appellant broached the subject of his lack 

of counsel and the court offered to appoint standby counsel: 

[APPELLANT]: Also, I want to know, shouldn’t I have an attorney 

present as well? 

THE COURT: Where? 

[APPELLANT]: For my hearing that I’m having right now. 

THE COURT: Well, I had given you the opportunity to either hire 

someone or represent yourself. You’ve not come up with anyone 

yet. The public defender is not available to you any longer. I 

don’t know what else to do. 

[APPELLANT]: All right. Because I -- I would -- I thought that I 

would -- if I represented myself that I would have somebody to 

be on the side to advise me. 

THE COURT: Well, if you’re asking me to appoint standby counsel, 

I can do that, but that’s going to be somebody from the public 

defender’s office. 

[APPELLANT]: Yes. 

THE COURT: Okay. Well, I can do that from here on out... 

N.T. 1/9/18, 16-17; id. at 22 (standby counsel appointment ordered). 

 After the denial of the habeas motion, Appellant addressed his lack of 

counsel with the court as follows: 

[APPELLANT]: I don’t want to legally represent myself, but you 

guys pushed my back against the wall. 

THE COURT: Yes. Yes, we did. 

[APPELLANT]: And I’m supposed to have -- 
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THE COURT: I did, actually. 

[APPELLANT]: -- legal representation at every – 

THE COURT: You had two. 

[APPELLANT]: -- court proceeding. 

THE COURT: You had two. 

[APPELLANT]: I should have as many as I can until I have -- 

THE COURT: No, no, no, no. 

[APPELLANT]: Until I get legal representation. 

THE COURT: You don’t get to burn through attorneys like tissues. 

It doesn’t work that way. 

[APPELLANT]: Well, for one, you heard Mr. Ritter. He cancelled 

our appointment, and then he was late for my preliminary. 

THE COURT: I heard Mr. Ritter. 

[APPELLANT]: He wasn’t ready. 

THE COURT: He said he was able and willing and ready to do the 

hearing, and he did. And he did just that, and he did exactly what 

I would have expected to hear at a preliminary hearing. He’s a 

very good attorney. 

[APPELLANT]: I’m sure he is. 

THE COURT: You burned through Mr. Neely. 

[APPELLANT]: He was a DA for -- 

THE COURT: And now you have no one. 

[APPELLANT]: He was a DA for over 20 years. I understand that. 
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THE COURT: When you fire the public defender’s office, you burn 

that bridge. They will not be reappointed. You cannot have them 

again. 

[APPELLANT]: I understand that, Your Honor. But we didn’t even 

go over my case, and he said he was ready when we didn’t even 

go over my case. 

N.T. 1/9/18, 27-29. 

 At the next listing, Appellant brought up his right to counsel, denied that 

he waived his right to counsel, and maintained that he asked for a new 

appointed counsel. The court continued to maintain, consistent with its earlier 

warning, that new counsel would not be appointed after Appellant fired his 

original appointed counsel: 

[APPELLANT]: But I did not waive counsel. I asked you to appoint 

me a court-appointed attorney. 

THE COURT: Right. And I told you at that point when you got rid 

of Mr. Ritter that I would not do that, that you could either hire an 

attorney or you could proceed on your own. That’s the choice 

when you fire the public defender. 

[APPELLANT]: Okay. 

N.T. 2/13/18, 6. By then, the original appointed counsel, Attorney Ritter, had 

returned to service in the case as newly-appointed standby counsel. Appellant 

then expressed entitlement to someone other than his former counsel as his 

standby counsel: 

[APPELLANT]: -- so how did you appoint me Mr. Ritter? 

THE COURT: He is your standby counsel now. 

[APPELLANT]: How is that possible? 
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THE COURT: Because I think I asked you if you wanted standby 

counsel, and you said yes. And so, therefore, I made Mr. Ritter 

your standby counsel. 

[APPELLANT]: I want to know, after he’s withdrawn, how is he 

back on my case? 

THE COURT: For that reason, that I asked you, do you want him 

to be available as standby counsel, and you said yes. 

[APPELLANT]: Yeah. As standby counsel -- 

THE COURT: Right. 

[APPELLANT]: -- not the same one that was withdrawn. 

THE COURT: That’s what you get. 

[APPELLANT]: That’s not what I get. Under the constitutional 

law, I don’t get that. 

Id. at 7-8. After addressing additional concerns with Appellant, the trial court 

set a trial date for April 17, 2018. Id. at 13. 

 On March 27, 2018, the trial court presided over a hearing to address 

pending pre-trial motions. Appellant again addressed his lack of counsel in 

passing. N.T. 3/27/18, 66. At the end of the hearing, Appellant informed the 

court that he asked for Attorney Ritter “to remove himself” from the case as 

standby counsel and suggested that Attorney Ritter asked him to make the 

request “so [he could] have a different court-appointed standby attorney.” 

Id. at 71. The court refused the request as an attempt to “pick and choose” 

a new appointed attorney. Id. at 72 (“THE COURT: You don’t get to pick and 

choose amongst the public defender’s office who you get ... I’ll allow Mr. Ritter 
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to be released from that role, but I’m not going to appoint anybody else at 

this late date.”). Appellant then maintained that Attorney Ritter was 

supposedly disqualified from the matter, but the court again clarified that 

Attorney Ritter was originally withdrawn from the case because Appellant 

chose not to have his representation. Id. at 73. 

 Before the hearing was concluded on that date, Appellant repeated his 

request for appointment of a new standby counsel as follows: 

[APPELLANT]: ... And then you tell me when I disqualify Mr. Ritter 

that I have problems taking authority when I don’t need to take 

authority from him. If he’s my lawyer, he is supposed to take 

authority from me. 

THE COURT: No. That’s probably not quite true. 

[APPELLANT]: Well, mostly it is. 

THE COURT: Okay. So you don’t want Mr. Ritter to try the case 

for you. 

[APPELLANT]: I want another standby to -- 

THE COURT: Well, that’s not going to happen. 

[APPELLANT]: It’s conflict of interests. How are you going to keep 

giving me somebody that -- that is a conflict of our interests -- 

THE COURT: All right. 

[APPELLANT]: -- from the preliminary to now? 

THE COURT: Okay. 

[APPELLANT]: And you know that. That was on the recording 

that [the prosecutor] has. 
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THE COURT: All right. Then, Mr. Berrien, we’re going to just 

continue to disagree. We’re not really making any headway here. 

N.T. 3/27/18, 82-83. 

 At another pre-trial listing on April 20, 2018, in which the court reviewed 

Appellant’s denial of a plea offer, Appellant again brought up his lack of 

counsel but, this time, he completely denied the circumstance in which he 

originally “fired” his initial appointed counsel and continued to maintain that 

that attorney had been “disqualified” from the case: 

[APPELLANT]: Because I did not waive my right to counsel, and I 

never -- I have never mentioned that I wanted to be pro se 

because I’m not competent to self-represent myself. 

THE COURT: Well, you’ve had all this time, Mr. Berrien, to hire 

another attorney, and you haven’t done anything to that end. 

[APPELLANT]: Well, I’m an indigent defendant. 

THE COURT: Understood. But what we discussed at least three 

or four times is the fact that once you have the public defender’s 

office and you fire them in order to have private counsel, it is their 

policy that they will not take you back. 

[APPELLANT]: Well, I didn’t fire the public defender’s office to 

have private counsel. I fired [Attorney] Ritter, and he -- he had 

his own law firm. 

THE COURT: No, no. He was representing you through the public 

defender’s office. And once you fired him, you fired the public 

defender’s office. You hired private counsel. Again, it’s their 

policy that they will not take you back. And so I went over with 

you more than enough times the fact that your options were to 

hire a new attorney or to represent yourself with standby counsel. 

Those are the only options. 

[APPELLANT]: Now, standby counsel is from the public defender’s 

office as well; correct? 
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THE COURT: That’s the only place you can get standby counsel 

from. 

[APPELLANT]: But once [Attorney] Ritter was disqualified, he was 

disqualified from representing me on this matter. 

THE COURT: He is not representing you. He is available to answer 

your questions. He is available to serve subpoenas. He is 

available to handle exhibits in court. He is available to send out 

an investigator. Those are the things he is available to do. He is 

not representing you. You are representing yourself. 

N.T. 4/20/18, 4-6. 

At the end of the hearing, Appellant requested a continuance to retain 

private counsel which the court rejected: 

[APPELLANT]: Your Honor, I would like a continuance, so I can 

retain counsel because I cannot proceed with -- 

THE COURT: No. You’ve had ample time to retain counsel. 

[APPELLANT]: I have not. I have been trying to have -- 

THE COURT: You have had ample time to retain counsel. 

[APPELLANT]: -- him withdrawn. 

THE COURT: [Commonwealth], your position on Mr. Berrien’s 

request for continuance? 

[PROSECUTOR]: I’m opposed to it -- 

THE COURT: Okay. 

[PROSECUTOR]: -- because he has said the same thing for 

months and months and months. 

THE COURT: Okay. Then we’re good. We’re good to go on 

Tuesday. 
J-A04045-24 

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N.T. 4/20/18, 10-11. 

 On the first day of Appellant’s trial on the following week, Appellant 

appeared in prison garb rather than offered civilian clothing, and the court 

asked him about his attire. Appellant responded, “Well, I -- I don’t want this 

trial to start because I don’t have representation.” N.T. 4/24/18, 6. After the 

court recounted the history of the case in which Appellant had the opportunity 

to be represented by the public defender, he chose to hire private counsel, 

and then was provided with standby counsel, the court explained that 

Appellant had forfeited his right to counsel “by intentionally not seeking 

representation, by intentionally not responding to [the court’s] suggestions or 

[the court’s] inquiries, and that [his] purpose [was] to try and delay or just to 

be obstreperous.” Id. at 7. Appellant again alleged a conflict with the public 

defender’s office, and the court corrected him that there was never an 

established conflict and that he instead chose to fire the public defender’s 

office and retain private counsel. Id. at 9. Appellant then asserted that he 

fired his appointed counsel because of a supposed conflict of interest. Id. at 

9-10. Appellant told the court that it was required to conduct a colloquy with 

him pursuant to Pa.R.Crim.P. 121 and the court responded that it was not 

required to conduct the colloquy because he had forfeited his right to counsel. 

Id. at 10-11. Jury selection and the trial then proceeded. 

 Reviewing all these exchanges in their proper context, there was never 

a moment at which the trial court should have conducted a colloquy pursuant 

to Pa.R.Crim.P. 121 because Appellant never waived the right to be 
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represented by counsel in this matter. At the same time, the trial court did 

not force Appellant to go without representation. Instead, the record supports 

the trial court’s conclusion that Appellant forfeited his right to counsel through 

extremely dilatory conduct. 

 Here, Appellant “fired” his initial public representation and then his 

attorney-client relationship with a retained attorney soured when he made an 

“improper and unethical” request of that attorney. N.T. 6/6/17, 4-6; N.T. 

9/12/17, 2-3. He then asked for two months of continuances to get a new 

private attorney without demonstrating efforts to retain counsel in that period. 

N.T. 10/17/17, 2; N.T. 11/21/17, 2. At the listing in which he asked for the 

second continuance, he expressed that he “ran out of funds” and asked for a 

new appointment of counsel and the court gave him additional time to seek 

private counsel. N.T. 11/21/17, 2. The court rejected the request for a new 

appointment because it had earlier warned Appellant that it would not do so 

upon the firing of his initial appointed counsel. Id.; see also N.T. 6/6/17, 5-

6. 

 In the ensuing pretrial listings, Appellant made multiple statements 

suggesting that his request to initially seek private counsel and then pursue 

another private attorney after Attorney Neely withdrew from the case were 

examples of gamesmanship to get a public attorney appointment of his 

choosing or at least another attorney other than his initial appointed counsel, 

Attorney Ritter. He told the court, “I should have as many [attorneys] as I 

can” at one point. N.T. 1/9/18, 27-29. After Attorney Ritter had been 
J-A04045-24 

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reinstated to the case as standby counsel, Appellant suggested that it would 

be unconstitutional for Attorney Ritter to be his standby counsel given his prior 

withdrawal after being “fired” by Appellant, and then suggested that Attorney 

Ritter was somehow removed from the case for a conflict of interest even 

though no conflict had been proposed or found and Appellant had clearly 

“fired” Attorney Ritter as his counsel. N.T. 2/13/18, 7-8; N.T. 3/27/18, 73, 

82-83; N.T. 4/20/18, 4-6. In the process of doing so, he even suggested that 

he asked Attorney Ritter to seek his own withdrawal as standby counsel as a 

way for Appellant to get a different standby attorney. Id. at 71. When those 

overtures did not result in Appellant getting a different public attorney as 

standby counsel, Appellant returned to prior efforts of asking for additional 

time to retain private counsel even though he was claiming to be indigent at 

the same listing, days before his scheduled trial. N.T. 4/20/18, 4-6, 10-11. 

 The trial court characterized Appellant’s efforts in these various 

exchanges as attempts to “try and delay or just to be obstreperous,” N.T. 

4/24/18, 7, and we are unable to disagree with that assessment. Appellant’s 

efforts to ask for more time to seek private counsel and then seek public 

representation by someone other than his original public counsel caused 

enough delay that the trial could not proceed until more than ten months after 

he fired his initial public counsel with the delays mostly resulting from 

Appellant’s changing stances on his desired representation. The obstreperous 

description was apt where Appellant seemed to be lying to the trial court about 

the circumstances of Attorney Ritter’s original withdrawal when he suggested 
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a disqualification for a conflict of interest when Appellant plainly “fired” the 

attorney. 

 Based on our review of the record, we agree with the trial court that 

Appellant forfeited his right to counsel and thus there was no need to conduct 

a colloquy pursuant to Rule 121. Appellant’s refusal to be represented by 

Attorney Ritter in the initial pre-trial stage, his inability to cooperate with both 

Attorney Ritter and Attorney Neely, and his subsequent attempts to seek a 

public attorney other than Attorney Ritter as his standby counsel suggested 

that Appellant only wanted counsel of his choice or one who would personally 

satisfy him. As in Kelly, Appellant – even as a supposedly indigent defendant 

– forfeited his right to counsel by engaging in a “cat and mouse game” 

throughout the pre-trial proceedings in order to now claim that by bringing his 

case to a trial, the trial court arbitrarily deprived him of his right to counsel. 

See Kelly, 5 A.3d at 381, quoting with approval United States ex rel. 

Davis v. McMann, 386 F.2d 611, 618-19 (2d Cir. 1967) (A defendant “may 

use [the right to proceed pro se] to play a ‘cat and mouse’ game with the 

court ... or by ruse or stratagem fraudulently seek to have the trial judge 

placed in a position where, in moving along the business of the court, the 

judge appears to be arbitrarily depriving the defendant of counsel”). At the 

same time, we appreciate that Appellant was not only playing this game with 

the trial court but also his victim who was awaiting the trial. 
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 While this case presents a slightly closer decision than the one made in 

Kelly, as Appellant failed to cooperate9 with two attorneys rather than three, 

we do not find that the trial court committed an error by finding forfeiture of 

the right to counsel through extreme dilatory behavior and thus declining to 

conduct a colloquy under Rule 121 on this record. See Lucarelli, 971 A.2d 

at 1179 (holding that Pa.R.Crim.P. 121 does not apply when a defendant 

forfeits the right to counsel and defendants “should not be permitted to 

unreasonably clog the machinery of justice or hamper and delay the state’s 

efforts to effectively administer justice,” and explaining that “[t]o hold 

otherwise would permit a recalcitrant defendant to engage in the sort of 

obstructive behavior that mandates the adoption of the distinction between 

forfeiture and waiver in the first instance”); Kelly, 5 A.3d at 381-82 (holding 

that a forfeiture of counsel was not error because, inter alia: (1) Kelly was 

unwilling to cooperate with all three counsel assigned to him; (2) he argued 

that all three counsel were incompetent because they refused to argue what 

he believed was the law; (3) his trial had been postponed because he could 

not agree with his second counsel; and (4) he wanted a fourth counsel 

____________________________________________ 

9

 Appellent’s initial firing of Attorney Ritter could be equated with lack of 

cooperation as would his request of some unspecified improper or unethical 

act by Attorney Neely. 
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assigned to him and the postponement of the trial instead of trying to 

cooperate with his third counsel).10

 Judgments of sentence affirmed. 

 

____________________________________________ 

10 In these precise circumstances, the court was not required to appoint an 

attorney other than Attorney Ritter before making its finding of forfeiture. See

Kelly, 5 A.3d at 381, citing Jackson v. United States, 258 F.Supp. 175, 

184 (N.D.Tex. 1966) (“If the defendant does not agree with his counsel, he 

has a right to present his own contentions; but the sovereign is under no duty 

to search for counsel until it finds one who will agree with him.”). To do so 

would violate the precept that a defendant who seeks court-appointed counsel 

“does not have a right to choose the particular counsel to represent him.” 

Commonwealth v. Rucker, 761 A.2d 541, 542 n.1 (Pa. 2000), citing 

Commonwealth v. Moore, 633 A.2d 1119, 1125 (Pa. 1993). Here, Appellant 

made no request for a reappointment of Attorney Ritter beyond the standby 

counsel assignment, evinced a lack of interest in Attorney Ritter’s involvement 

in the case even as standby counsel, and was not entitled to a change of 

assigned public counsel unless a substantial reason existed for a change in 

counsel from the original assignment. See Pa.R.Crim.P. 122(C) (“A motion 

for change of counsel by a defendant for whom counsel has been appointed 

shall not be granted except for substantial reasons.”); see also 

Commonwealth v. Spotz, 756 A.2d 1139, 1150 (Pa. 2000) (noting that 

satisfaction of the “substantial reason” burden under the precursor rule to Rule 

121(C) required a demonstration that the defendant “has an irreconcilable 

difference with counsel that precludes counsel from representing him" which 

lies within the discretion of the trial court); Commonwealth v. Ganjeh, 300 

A.3d 1082, 1092 (Pa. Super. 2023) (“We have held that a strained relationship 

with counsel, a difference of opinion in trial strategy, a lack of confidence in 

counsel’s ability, or brevity of pretrial communications do not necessarily 

establish irreconcilable difference.”). 
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Date: 6/17/2024