J-S45003-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NELSON ALVARADO-LENHART,

Appellant No. 1733 MDA 2012

Appeal from the Judgment of Sentence Entered September 6, 2012

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003854-2011

BEFORE: BENDER, J., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, J.: FILED NOVEMBER 21, 2014

Appellant, Nelson Alvarado-Lenhart, appeals from the judgment of 

sentence of six to fifteen years’ incarceration, imposed after a jury convicted 

him of aggravated assault, robbery, theft by unlawful taking, receiving 

stolen property, and simple assault. On appeal, Appellant contends that he 

was denied his constitutional right to counsel, as he did not knowingly, 

voluntarily, and intelligently waive his right to an attorney. After careful 

review, we are constrained to vacate Appellant’s judgment of sentence and 

remand for a new trial.

While the facts of Appellant’s case are irrelevant to our disposition, we 

note that his convictions stemmed from evidence that he robbed and beat a 

man outside of a restaurant in August of 2011. After Appellant was charged 

with the above-stated offenses, the court appointed Paul Yessler, Esquire, to 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S45003-13

- 2 -

represent him. At a pretrial status hearing on December 16, 2011, Attorney 

Yessler informed the court that Appellant had repeatedly expressed his 

desire to represent himself. N.T. Hearing, 12/16/12, at 2. Appellant, 

however, immediately interjected, explaining that he did not wish to 

represent himself but, instead, he wanted a new attorney because he was 

unhappy with Attorney Yessler’s representation. Id. After listening to 

Appellant’s complaints about Attorney Yessler’s representation, the court and 

Appellant had the following exchange: 

[The Court]: If you don’t want [Attorney] Yessler to represent 

you, you have the right to hire an attorney. You say you were 

making $700 a week. You can hire an attorney of your choice.

[Appellant]: I was doing that job one month and spent that 

money already taking care of bills.

[The Court]: I need to advise you, you have that right if you 

don’t want [Attorney] Yessler to represent you.

[Appellant]: No, I don’t.

[The Court]: He is your free attorney. You have to represent 

yourself –

[Appellant]: Why can’t I have a court appointed attorney?

[The Court]: He is your court appointed attorney. You don’t get 

to pick and choose who you are assigned.

[Appellant]: I’m not picking and choosing. I’m asking for 

somebody that’s going to fight for me that isn’t giving me 

attitude that hasn’t fought one bit. He’s rolling with the 

punches. He is not doing anything for me. You know what I 

mean?

I deserve a fair hearing, a fair trial. You know what I mean? I 

would represent myself if I knew the bells and whistles of the 

whole thing. I don’t. I am not going – I refuse to go any further 

with this gentleman.
J-S45003-13

- 3 -

[The Court]: All right.

[Appellant]: I will represent myself if I have to, but everything is 

going to be ---

[The Court]: Stop.

[Appellant]: All right.

[The Court]: And now, this 16th day of December, 2011, after 

colloquy conducted, and upon motion of [] Paul Yessler, Esquire, 

the appearance of Attorney Yessler and the Public Defender is 

hereby withdrawn. 

There is definitely conflict between the attorney and his client 

with regard to the manner [in] which he should conduct his 

services, and [Appellant] doesn’t want him to represent him 

anymore. 

We need to address the waiver of counsel. You can hire your 

own attorney. Do you understand that by representing yourself 

you will be bound by all the rules of procedure that lawyers are 

bond [sic] by and –

[Appellant]: Can I get some kind of information on what the 

same rules that apply to a lawyer that apply to me? Can I get 

information telling me what’s going on?

[The Court]: You have [that] at the prison. Don’t they have 

some sort --

[Appellant]: I put in a communication form like that, and they 

expect me to go to an inmate and have them direct me. And 

there, there is a lot of information missing from the books at the 

law library. I asked numerous times. I asked for help and 

information.

[The Court]: Stop, [Appellant]. You are in a box and I am in a 

box. You apparently can’t hire a private attorney. You have a 

public attorney and you fired him. You and I are left with each 

other because that’s the way it’s going to be.

Now, you obviously want a trial, right? You want a trial?

[Appellant]: I want to be represented adequately.

Id. at 6-8.
J-S45003-13

- 4 -

The Court then discussed why it believed Appellant had received 

adequate representation, noting that Attorney Yessler called witnesses at the 

preliminary hearing, filed a writ of habeas corpus on Appellant’s behalf, and 

conducted “a fairly good investigation of the case.” Id. at 9. The court then 

stated, 

[The Court]: I didn’t believe that the issues that were raised by 

your attorney on your behalf which you have alluded to that, 

that that was sufficient. The evidence was you committed these 

offenses. So let’s go forward. We will set a trial date and you 

will represent yourself.

Id. at 9. The court then provided Appellant with “a waiver of counsel form,” 

directing Appellant to “read it and sign it,” and stating that doing so “means 

you don’t want [Attorney] Yessler.” Id. Appellant then signed the waiver 

form. Finally, the court appointed Jay Nigrini, Esquire, to act as stand-by 

counsel for Appellant, but explained to Appellant that he was still 

representing himself, and that Attorney Nigrini was “just there to answer 

questions.” Id. at 10. 

On April 18, 2012, Appellant filed a pro se “Petition to Uphold 

Retainment of Jay M. Nigrini to Represent As Conflict Counsel in Case Doc. 

3854/11.” In that document, Appellant contended that he was deprived of 

his right to counsel because the court did not conduct a proper colloquy to 

ensure his waiver was knowing, intelligent, and voluntary. He asked that 

the court appoint him representation. On April 24, 2012, the trial court 

issued an order denying Appellant’s petition. The court stated: “Jay Nigrini, 

Esquire, has been appointed stand-by counsel for [Appellant]. [Appellant] 
J-S45003-13

- 5 -

continues to be eligible for free legal representation by the Public Defender, 

Paul Yessler, Esquire.” Trial Court Order, 4/24/12.

On August 21, 2012, three days before Appellant’s jury trial was set to 

commence, he again filed a pro se document entitled “Petition for Counsel 

Representation.” Therein, Appellant alleged that he was indigent and could 

not afford counsel, and asked that the court appoint him an attorney. The 

court apparently ignored this filing and Appellant proceeded to trial 

representing himself. At the close thereof, he was found guilty of the abovestated offenses. 

Following his conviction, Appellant hired private counsel who filed a 

post-sentence motion on his behalf, averring that Appellant’s waiver of his 

right to counsel was not knowing, intelligent, and voluntary where the court 

did not conduct a proper colloquy as mandated by Pa.R.Crim.P. 121. The 

court denied that post-sentence motion. Appellant then filed a timely notice 

of appeal, as well a timely concise statement of matters complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). On appeal, he presented one issue 

for our review:

A. Whether the trial court denied [Appellant] his right of counsel 

by not complying with the requirements of Rule of Criminal 

Procedure 121 at the hearing held on December 16, 2011?

Appellant’s Brief at 7.

On September 16, 2013, this Court issued a memorandum decision 

vacating Appellant’s judgment of sentence and remanding for a new trial. In 
J-S45003-13

- 6 -

doing so, we relied on Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011), 

where our Supreme Court stated:

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 (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 (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 
J-S45003-13

- 7 -

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); Blakeney, supra at 655; Starr, supra 

at 1335.

Id. at 262-63.

We also emphasized our Supreme Court’s directive that it is “the trial 

judge who [is] ultimately responsible for ensuring that the defendant is 

questioned about the six areas discussed above and for determining whether 

the defendant was indeed making an informed and independent decision to 

waive counsel.” Commonwealth v. Davido, 868 A.2d 431, 437 (Pa. 2005) 

(citation and quotation marks omitted). Accordingly, it is the trial judge who 

has “the duty to ensure that a defendant’s right to counsel was protected.” 

Id. Once a defendant expresses a desire to represent himself, the failure 

“to conduct a thorough, on-the-record colloquy before allowing a defendant 

to proceed to trial pro se constitutes reversible error.” Commonwealth v. 

Clyburn, 42 A.3d 296, 300-01 (Pa. Super. 2012); see also 

Commonwealth v. Patterson, 931 A.2d 710 (Pa. Super. 2007).

Based on this legal precedent, we concluded in our September 16, 

2013 memorandum decision that the trial court in Appellant’s case failed to 

conduct an adequate colloquy to ensure Appellant’s waiver of his right to 

counsel was valid. Instead, the court incorrectly applied a totality of the 

circumstances analysis.1 See Commonwealth v. Houtz, 856 A.2d 119, 

____________________________________________

1 As evidence of this fact, we noted the trial court’s statement that “the 

record, read in its entirety, demonstrates that [Appellant] was offered 

counsel but intelligently and understandingly rejected that offer.” Trial Court 

(Footnote Continued Next Page)
J-S45003-13

- 8 -

130 (Pa. Super. 2004); see also Commonwealth v. Payson, 723 A.2d 

695, 704 (Pa. Super. 1999). We emphasized that the court was required to 

colloquy Appellant on all six areas set forth in Rule 121, yet based on the 

portions of the December 16, 2011 hearing quoted supra, it was obvious 

that the court failed to do so. Specifically, we emphasized that the court did 

not inform Appellant of the nature and elements of charges pending against 

him, permissible range of punishments, possible defenses, and the danger of 

permanently waiving his right to assert certain defenses and other rights if 

(Footnote Continued) _______________________

Opinion (TCO), 11/15/12, at 5. We also emphasized the following language 

utilized by the trial court in supporting the above-stated conclusion:

The [c]ourt held a lengthy discussion on December 16, 2011, 

with [Appellant] regarding his rights, including the right to 

continue with his appointed counsel’s representation and his 

right to self[-]representation. Unfortunately, [Appellant] was 

not cooperative with the [c]ourt during this discussion. 

However, [Appellant] made it abundantly clear that he refused 

to continue with his appointed counsel’s representation. The 

[c]ourt informed [Appellant] that should he choose to proceed 

pro se, he would be bound by all of the rules of procedure that 

lawyers are bound by. During this discussion with the [c]ourt, 

[Appellant] read and signed a WAIVER OF COUNSEL form, which 

indicated that [Appellant] had been informed of the offenses 

against him and had been advised of his right to secure a lawyer 

at his own expense or have one appointed for him. In addition 

to its discussion with [Appellant] and securing execution of the 

WAIVER OF COUNSEL form, the [c]ourt appointed standby 

counsel to be available to [Appellant] for consultation and advice 

during the proceedings. Based on a complete review of the 

discussion which occurred on December 16, 2011, the [c]ourt 

believes that [Appellant’s] waiver of counsel was knowing, 

voluntary and intelligent.

Id. at 5-6 (citations to the record omitted).
J-S45003-13

- 9 -

not raised at trial. We further determined that the fact that Appellant was 

“not cooperative,” the court’s appointment of standby counsel, and 

Appellant’s completion of a written colloquy did not dispel the court’s 

obligation to conduct a full, on-the-record colloquy. See Commonwealth 

v. Brazil, 701 A.2d 216, 219 (Pa. 1997) (“Whether standby counsel is

ultimately appointed or not, and irrespective of the quality of representation 

achieved at trial, when a defendant indicates a desire to waive his right to 

counsel, a full waiver colloquy must be conducted.”); Commonwealth v. 

Baker, 464 A.2d 496, 499 (Pa. Super. 1983) (“A form providing for the 

simple written waiver of counsel, without an on-the-record inquiry, will not 

suffice as an alternative means to assuring valid waivers.”). We noted that 

this was especially true regarding the written colloquy, as the court 

misinformed Appellant that signing the form “means that you don’t want 

[Attorney] Yessler.” N.T. Hearing, 12/16/11, at 9. We reasoned that the 

court’s misstatement made it unclear whether Appellant signed the form 

with the understanding that he was waiving his right to counsel, or whether 

he did so merely to confirm that he did not want Attorney Yessler to 

represent him. 

In sum, we concluded in our September 16, 2013 memorandum that 

the court did not comply with the colloquy requirements of Rule 121 at the 

December 16, 2011 hearing. Moreover, after that hearing, Appellant 

repeatedly filed pro se documents requesting that counsel be appointed 

which the court either denied or disregarded. Thus, we found it clear that 
J-S45003-13

- 10 -

Appellant’s waiver of counsel was not knowing, intelligent, and voluntary. 

Accordingly, we vacated his judgment of sentence and remanded for a new 

trial. 

On September 30, 2013, the Commonwealth filed an application for 

reargument, which this Court denied on November 6, 2013. The 

Commonwealth then filed a petition for allowance of appeal with our 

Supreme Court. On August 19, 2014, the Supreme Court vacated our 

September 16, 2013 decision and remanded for us to reconsider our 

disposition under Commonwealth v. Lucarelli, 971 A.2d 1173 (Pa. 2009). 

We now do so herein.

In Lucarelli, the defendant was arrested and charged with various 

offenses. Id. at 1176. Prior to trial, he retained the services of three 

different attorneys, who all ultimately petitioned to withdraw. Id. After one 

such petition to withdraw was filed by counsel, Lucarelli filed a pro se 

“Petition for Due Process Violation and Attorney Misconduct.” Id. However, 

at the hearing on that motion, Lucarelli confusingly insisted he did not want 

his attorney to withdraw. Id. Nevertheless, the court permitted that 

counsel to withdraw, and advised Lucarelli to retain another attorney. Id. 

Lucarelli did not do so. Instead, at a later hearing, he again appeared 

pro se and informed the court that he wanted a public defender. Id. 

However, when he was provided an application to obtain court-appointed 

counsel, he did not complete it and appeared pro se at the next court 

proceeding. Id. at 1176-1177. Lucarelli then failed to appear for jury 
J-S45003-13

- 11 -

selection, causing the court to continue trial and issue a bench warrant for 

his arrest. Id. at 1177. 

The bench warrant was later lifted, and a fourth attorney was 

appointed as Lucarelli’s standby counsel. Id. However, Lucarelli 

subsequently informed the court “he did not wish to proceed alone before a 

jury.” Id. Accordingly, the court reduced his bail from $100,000 to $80,000 

so that Lucarelli could obtain counsel. Id. Nevertheless, Lucarelli appeared 

pro se for both jury selection and trial, and was unable to provide any 

reason for his failure to retain counsel. Id. 

On appeal, our Supreme Court held that Lucarelli had forfeited his 

right to counsel. In reaching this decision, the Court began by discussing 

the distinction between waiver and forfeiture:

Waiver is “an intentional and voluntary relinquishment of a 

known right.” By contrast, forfeiture, as defined by the Third 

Circuit, does not require that the defendant intend to relinquish a 

right, but rather may be the result of the defendant's “extremely 

serious misconduct” or “extremely dilatory conduct.” 

Id. at 1179 (citations omitted). The Court then concluded that “[Rule] 121 

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

found.” Id. It reasoned 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. Should an unrepresented defendant choose not to 

engage in the colloquy process with the trial court, were there no 

provision for forfeiture of counsel, that defendant could 

impermissibly clog the machinery of justice or hamper and delay 

the state's efforts to effectively administer justice. Such a result 
J-S45003-13

- 12 -

would be untenable. We reject [Lucarelli’s] suggestion that the 

Commonwealth must demonstrate that Appellee “knowingly and 

intelligently” engaged in conduct that had the inevitable effect of 

impairing his constitutional right to counsel. 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.

Id. (emphasis added).

Applying this holding to the facts of Lucarelli, the Court concluded 

that Lucarelli had forfeited his right to counsel for the following reasons:

[Lucarelli’s] behavior, over a course of 81⁄2 months, was 

sufficiently obstructive to mandate a conclusion of forfeiture 

because he engaged in extremely dilatory conduct. [Lucarelli] 

had more than eight months to prepare for trial; had the 

financial means to retain counsel; did retain counsel on 

several occasions, although the attorneys were permitted 

to withdraw when the attorney-client relationship 

deteriorated; was given access to $20,000 by the trial 

court some five weeks before the commencement of trial 

for the purpose of retaining counsel; and failed to offer an 

explanation for not having retained counsel by the start of 

trial. [Lucarelli] simply decided not to retain private 

counsel because he did not wish to spend the money.

Contrary to the Superior Court's conclusion, we hold that the 

trial court acted properly in directing [Lucarelli] to proceed to 

trial pro se. Thus, we hold further that the Superior Court 

committed an error of law in failing to recognize that [Lucarelli’s] 

pattern of behavior constituted extremely dilatory conduct, 

sufficient to result in the forfeiture of his right to counsel.

Id. at 1180 (footnote omitted).

For the reasons stated infra, we find Lucarelli distinguishable from the 

facts of the instant case. Notably, unlike the defendant in Lucarelli, here, 
J-S45003-13

- 13 -

Appellant was eligible for court-appointed counsel.2 As the aboveemphasized language in Lucarelli indicates, our Supreme Court’s conclusion 

that Lucarelli’s conduct “was sufficiently obstructive to mandate a conclusion 

of forfeiture” hinged on the fact that Lucarelli could afford counsel (and, at 

one point during the proceedings, was given access to $20,000 to acquire 

counsel), yet continuously failed to retain representation without 

explanation. Lucarelli, 971 A.2d at 1180. The same is not true in the 

present case; Appellant had court-appointed counsel, and nothing in the 

record suggests that he could afford – and simply chose not to retain – a 

private attorney.

Moreover, in Lucarelli, the defendant had three privately retained 

attorneys who withdrew before he began appearing for court proceedings 

____________________________________________

2 Our Court highlighted this same distinction in Commonwealth v. Kelly, 5 

A.3d 370, 379 n.7 (Pa. Super. 2010) (noting that Lucarelli “deal[t] with 

forfeiture as a result of [the] defendant’s dilatory conduct,” but differed from 

Kelly because “Kelly ... was eligible for court-appointed counsel”). In Kelly, 

we chose not to rely on Lucarelli to determine if Kelly’s conduct was 

sufficiently dilatory to constitute forfeiture of his right to court-appointed 

counsel, instead looking to federal case law for guidance on that question. 

Id. at 379 (relying on U.S. v. Fazzini, 871 F.2d 635, 641-42 (7th Cir. 1989), 

cert. denied, 493 U.S. 982 (1989) (finding defendant waived right to courtappointed counsel where he had been appointed four different attorneys with 

whom he was displeased), and U.S. v. Moore, 706 F.2d 538 (5th Cir. 1983), 

cert. denied, 464 U.S. 859 (1983) (finding defendant forfeited right to 

counsel after rejecting three court-appointed attorneys, and being informed 

that his failure to cooperate with the fourth appointed attorney would result 

in waiver of his right to court-appointed counsel)).
J-S45003-13

- 14 -

pro se. To the contrary, here, Attorney Yessler was Appellant’s first, and 

only, court-appointed attorney. This fact not only distinguishes Appellant’s 

case from Lucarelli, but also from other decisions by our Court issued in the 

wake of Lucarelli. See Kelly, 5 A.3d at 381 (finding Kelly forfeited his right 

to counsel where he had been “unwilling to cooperate” with three courtappointed attorneys); Commonwealth v. Thomas, 879 A.2d 246, 258 (Pa. 

Super. 2005) (finding defendant “forfeited his right to counsel through his 

pattern of serious misconduct, abuse, threats, and utter failure to 

collaborate” with five attorneys the court appointed to represent him). 

Finally, the conduct of the defendant in Lucarelli was clearly more 

dilatory than Appellant’s conduct in the present case. Namely, Lucarelli had 

three different attorneys with whom he refused to cooperate. He alleged 

misconduct against one of those attorneys, yet at a hearing on that motion, 

he confusingly insisted he did not want that counsel to withdraw. Lucarelli 

also informed the court that he wanted appointed counsel, yet failed to fill 

out the requisite forms. Moreover, despite being provided ample 

opportunity, and funding, to retain private counsel, Lucarelli unexplainably 

failed to do so and continued to appear pro se. On one occasion, he failed to 

appear for court at all, requiring the court to continue the case and issue a 

warrant for Lucarelli’s arrest. Lucarelli’s obstructive conduct hampered the 

disposition of his case for over eight months. 

To the contrary, here, Appellant expressed his displeasure with his first 

court-appointed attorney at a pretrial status hearing. He provided various 
J-S45003-13

- 15 -

reasons why he did not wish to proceed with Attorney Yessler’s 

representation. When the trial court characterized Appellant’s conduct as 

evincing his desire to waive his right to counsel, Appellant did not refuse to 

participate in the colloquy initiated by the court. See N.T. Hearing, 

12/16/12, at 7-8. Instead, he simply asked a question about whether he 

could “get some kind of information” about the rules he must follow when 

proceeding pro se. Id. at 8. After Appellant’s question, the court never 

returned to the oral colloquy, instead discussing other matters and then 

directing Appellant to sign the written colloquy if he did not “want [Attorney] 

Yessler.” Id. at 9. Following the December 16, 2012 hearing, Appellant 

proceeded pro se and, other than his filing of two pretrial motions asking the 

court to appoint counsel, there is no indication that Appellant behaved in any 

way which delayed the progression of his case or the start of his trial, at 

which he represented himself. Based on these facts, we conclude that 

Appellant’s behavior was not “extremely dilatory conduct, sufficient to result 

in the forfeiture of his right to counsel.” Lucarelli, 971 A.2d at 1180.

Accordingly, we conclude that Lucarelli is distinguishable and does 

not compel a conclusion that Appellant forfeited his right to counsel.3 

____________________________________________

3 We also note that the facts of Appellant’s case are distinguishable from 

those in Kelly and Thomas. In Thomas, the defendant was appointed five

different attorneys prior to the start of his trial. He then “refused to be 

present at the trial to assist his latest counsel, and attempted to take back 

his trial preparation materials from counsel.” Thomas, 879 A.2d at 258. 

On the second day of trial, the defendant threatened to physically harm his 

attorney, as well as counsel’s family. Id. at 258-59. Based on the 

(Footnote Continued Next Page)
J-S45003-13

- 16 -

Additionally, based on the rationale set forth in our September 16, 2013 

memorandum (reiterated, supra), we conclude that the trial court did not 

comply with the colloquy requirements of Rule 121 at the December 16, 

2011 hearing. Thus, the record does not establish that Appellant knowingly, 

intelligently, and voluntarily waived his right to counsel. Because Appellant 

neither forfeited, nor validly waived, that right, we are constrained to vacate 

his judgment of sentence and remand for a new trial. 

Upon remand, the court shall determine if Appellant wishes to be 

represented by Attorney Yessler, or proceed pro se. If he desires to proceed 

pro se, the court must conduct a full and thorough waiver colloquy pursuant 

(Footnote Continued) _______________________

defendant’s “extremely serious, abusive, and threatening misconduct,” we 

concluded that he forfeited his right to counsel. Id. at 259. 

In Kelly, the defendant was appointed two attorneys and was 

unwilling to work with either of them, resulting in the postponement of his 

trial. Kelly, 5 A.3d at 381. When the court appointed a third attorney, it 

warned Kelly that his failure to cooperate with that counsel “would result in 

[his] representing himself pro se at trial.” Id. Nevertheless, Kelly again 

failed to cooperate with his third attorney and sought to have a fourth 

counsel appointed. Id. at 381-82. Kelly treated each of his attorneys with 

disdain and claimed they were ineffective in representing him. Id. at 381-

82. Based on this behavior, we concluded that Kelly forfeited his right to 

counsel. Id. at 382.

Here, Appellant’s conduct does not compare with the defendants’ 

behavior in Thomas and Kelly. Appellant informed the court of his 

displeasure with his first court-appointed attorney. Nothing in the record 

indicates he was disdainful, threatening, or abusive toward counsel. 

Appellant’s conduct did not result in postponements or delays of the court 

proceedings. Therefore, neither Thomas nor Kelly compels us to conclude 

that Appellant forfeited his right to court-appointed counsel.
J-S45003-13

- 17 -

to Rule 121. If, on the other hand, Appellant desires to be represented by a 

court-appointed attorney other than Attorney Yessler, he must file a “motion 

for change of counsel” and state “substantial reasons” for seeking that 

change. See Pa.R.Crim.P. 122(C).

Judgment of sentence vacated. Case remanded for further 

proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2014