J-S58023-16

* Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

PATRICK L. COOK

Appellant No. 381 MDA 2016

Appeal from the PCRA Order February 4, 2016

In the Court of Common Pleas of Mifflin County

Criminal Division at No(s): CP-44-CR-0000087-2013

CP-44-CR-0000517-2012

BEFORE: GANTMAN, P.J., BOWES, and PLATT, * JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 27, 2016

Patrick L. Cook appeals from the February 4, 2016 order denying PCRA 

relief. We sua sponte vacate judgment of sentence and remand for 

resentencing in light of the United States Supreme Court decision in Alleyne

v. United States, 33 S.Ct. 2151 (2013). 

On November 13, 2013, following a jury trial at which Appellant 

proceeded pro se, but with the assistance of standby counsel, Appellant was 

convicted of aggravated indecent assault, indecent assault, and corruption of 

minors. The offenses were perpetrated between November 2004 and 

September 2007, and involved two females who were less than thirteen 
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years of age. Another offense occurred in July 2010, and involved one of 

the earlier victims. 

Appellant appeared pro se at sentencing, but again had the benefit of 

appointed standby counsel. The trial court imposed an aggregate sentence 

of eleven to twenty-two years imprisonment based on the application of two 

five to ten year mandatory minimum sentences for aggravated indecent 

assault on a child less than thirteen years old.1 Appellant, who had been 

determined to be a sexually violent predator, was also advised of the lifetime 

reporting requirements and what that entailed. 

Following pronouncement of sentence, the court advised Appellant of 

his post-sentence and appeal rights. Specifically, Appellant was told that he 

had the right to file a written post-sentence motion within ten days stating 

the particular relief sought. N.T. Sentencing, 2/28/14, at 18. The court also 

advised Appellant that he had “the same right to assigned counsel as has 

existed through sentencing.” Id. at 19. If he chose not to file a postsentence motion, the court explained that he had the option to appeal to the 

Superior Court within thirty days. Appellant was provided with a written 

acknowledgement of post-sentence procedures. Appellant informed the trial 

court on the record that he wanted a transcript of the proceedings and he 

____________________________________________

1 The mandatory minimum for aggravated indecent assault on a child was 

subsequently changed to ten to twenty years imprisonment. 
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was advised to put that in writing either in his post-sentence motion or in his 

appeal. Id. at 20. 

Appellant did not file a direct appeal from judgment of sentence. 

Rather, on February 23, 2015, he filed a timely pro se PCRA petition. The 

court appointed counsel to represent him, and counsel filed an amended 

petition on May 7, 2015 on Appellant’s behalf. Appellant asserted that the 

court’s failure to conduct a waiver-of-counsel colloquy pursuant to 

Pa.R.Crim.P. 121 and its denial of his request to permit standby counsel to 

assume representation during the trial resulted in the violation of his federal 

and state constitutional right to counsel and so undermined the truth 

determining process that no reliable adjudication of guilt or innocence could 

have taken place. Finally, Appellant maintained that although his waiver of 

right to counsel was voluntary, it was neither knowing nor intelligent, and 

that his performance at trial was so ineffective as to deprive him of a 

defense. 

The court scheduled a hearing on the amended petition. By order 

dated July 31, 2015, Matthew M. McClenahen, Esquire, was granted leave to 

withdraw as counsel2and on August 6, 2015, attorney Steven P. Trialonas 

was appointed as counsel. Counsel filed a second amended PCRA petition on 

____________________________________________

2

 The trial court represents that Attorney McClenahen sought withdrawal 

due to threats made by Appellant. Trial Court Opinion, 2/4/16, at 3.
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October 27, 2015, in which he averred that prior counsel had presented the 

only issues of merit. Following an evidentiary hearing on December 11, 

2015, and the submission of briefs, the PCRA court denied relief on February 

4, 2016. 

Appellant timely filed the instant appeal on March 4, 2016 and 

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. The trial court adopted its 

February 4, 2016 opinion as its Rule 1925(a) opinion, having concluded that 

it addressed the issues identified. Appellant presents two issues for our 

review:

A. Did the lower court commit an error of law and abuse of 

discretion by denying Defendant’s PCRA on the issue that the 

pro se colloquy was valid?

B. Did the lower court improperly deny Defendant’s PCRA with 

respect to whether his constitutional right to an attorney was 

violated at the time of trial. 

Appellant’s brief at 3.

We first outline our standard of review of a PCRA court’s ruling:

Under the applicable standard of review, we must 

determine whether the ruling of the PCRA court is supported by 

the record and is free of legal error. Commonwealth v. 

Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA 

court's credibility determinations, when supported by the record, 

are binding on this Court. Commonwealth v. Johnson, 600 Pa. 

329, 966 A.2d 523, 532, 539 (2009). However, this Court 

applies a de novo standard of review to the PCRA court's legal 

conclusions. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 

790, 810 (2007).
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Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). 

In order to prevail on a petition for PCRA relief, 

a petitioner must plead and prove by a preponderance of the 

evidence that his or her conviction or sentence resulted from one 

or more of the circumstances enumerated in 42 Pa.C.S. § 

9543(a)(2). These circumstances include a violation of the 

Pennsylvania or United States Constitution or ineffectiveness of 

counsel, either of which "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)(i) and (ii). In 

addition, a petitioner must show that the claims of error have 

not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). 

An issue has been waived "if the petitioner could have raised it 

but failed to do so before trial, at trial, on appeal or in a prior 

state post[-]conviction proceeding." 42 Pa.C.S. § 9544(b). An 

issue has been previously litigated if "the highest appellate court 

in which the petitioner could have had review as a matter of 

right has ruled on the merits of the issue." 42 Pa.C.S. § 

9544(a)(2).

Id.

The right to counsel in a criminal proceeding is a fundamental right 

guaranteed under the Sixth Amendment of the United States Constitution 

and Pa. Const. Art. 1 §9. Pa.R.Crim.P. 121 embodies the requirements for a 

colloquy ensuring that a waiver of that fundamental right is given knowingly, 

voluntarily, and intelligently. Rule 121(A)(2) provides that: 

(2) To ensure that the defendant's waiver of the right to 

counsel is knowing, voluntary, and intelligent, the judge or 

issuing authority, at a minimum, shall elicit the following 

information from the defendant:

(a) that the defendant understands that he or she 

has the right to be represented by counsel, and the 

right to have free counsel appointed if the defendant 

is indigent;
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(b) that the defendant understands the nature of 

the charges against the defendant and the elements 

of each of those charges;

(c) that the defendant is aware of the permissible 

range of sentences and/or fines for the offenses 

charged;

(d) that the defendant understands that if he or she 

waives the right to counsel, the defendant will still be 

bound by all the normal rules of procedure and that 

counsel would be familiar with these rules;

(e) that the defendant understands that there are 

possible defenses to these charges that counsel 

might be aware of, and if these defenses are not 

raised at trial, they may be lost permanently; and

(f) that the defendant understands that, in addition 

to defenses, the defendant has many rights that, if 

not timely asserted, may be lost permanently; and 

that if errors occur and are not timely objected to, or 

otherwise timely raised by the defendant, these 

errors may be lost permanently.

. . . . 

Pa.R.Crim.P. 121. 

Appellant contends that the trial court did not conduct the mandated 

colloquy. The court did not explain the nature of the charges, the elements 

of the offenses, that Appellant acting pro se would be bound by the rules of 

criminal procedure, and that the failure to raise defenses would be 

permanently lost. Thus, he contends, his waiver of his right to counsel was 

not knowing and intelligent. In support of his contention, Appellant adduced 

the following evidence at the PCRA hearing. He supplied the August 26, 
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2013 transcript of the proceeding on his motion to withdraw, motion to 

consolidate, and arraignment. He also tendered the transcript of the 

November 12, 2013 jury trial. Appellant also took the stand and answered 

his counsel’s hypothetical question: 

Q. Mr. Cook if you had been informed of the elements of 

the charges that you were facing, if you had been informed of 

the possible range of sentences that you might receive upon 

conviction of those charges, if you had been informed that when, 

there are possible defenses to those charges that an attorney 

might be aware of , and if they’re not raised at trial you might 

waive them, and if you had been informed that in addition to 

defenses there are many rights that if not timely asserted could 

be lost permanently, if you had been informed of those things 

would your decision to go pro se have remained? Would you still 

have wanted to represent yourself at trial?

A. Yes. 

Q. Yes. You would have wanted to represent yourself?

A. Yes.

N.T. PCRA Hearing, 12/11/15, at 10-11.

We find first, that trial court error in the colloquy was an issue that 

could have been raised at trial and argued on direct appeal.3 Thus, under 42 

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3 When the issue of a defective waiver of counsel colloquy is raised on direct 

appeal, there is no requirement that an appellant independently prove 

prejudice. One need only demonstrate that the colloquy was, in fact 

defective. See Commonwealth v. Tabu Nazshon Phillips, 93 A.3d 847, 

855 (Pa.Super. 2014) (holding, on direct appeal, "[i]n light of the...court’s 

failure to meet the minimum requirements of Rule 121 and to question 

Appellant on the qualitative aspects of his waiver of counsel at multiple 

(Footnote Continued Next Page)
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Pa.C.S. § 9544(b)4, the issue is waived. However, since Appellant was 

represented by counsel when the allegedly defective waiver colloquy 

occurred, and is currently represented by counsel, Appellant also could have 

asserted the ineffectiveness of trial counsel in failing to object to the 

allegedly inadequate colloquy herein. See Spotz, supra (alleging counsel 

ineffectiveness for failing to object to the trial court’s allegedly ineffective 

waiver colloquy). Since Appellant did not assert any claim of ineffective

assistance of counsel, however, that claim is waived as well. 

Nevertheless, even if this claim was not waived, it would not afford 

relief. While appearing to concede that the colloquy did not strictly comply 

with Pa.R.Crim.P. 121, the PCRA court concluded that Appellant was not 

entitled to relief as he suffered no prejudice. The court pointed to 

(Footnote Continued) _______________________

critical stages of the proceedings, we are constrained to vacate the 

judgment of sentence and remand for further proceedings."). 

4 42 Pa.C.S. § 9544(b) provides:

(b) ISSUES WAIVED. – For purposes of this subchapter, an issue 

is waived if the petitioner could have raised it but failed to do so 

before trial, at trial, during unitary review, on appeal or in a prior 

postconviction proceeding.
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Appellant’s own admission that if he had been apprised of the Rule 121 

concerns, he would still have chosen to proceed pro se.

5

 

Moreover, the trial court found that Rule 121’s colloquy requirements 

did not apply where, as here, Appellant’s “extreme and serious misconduct 

acted to forfeit his right to counsel.” Commonwealth v. Kelly, 5 A.3d 370, 

378 (Pa.Super. 2010) (holding Pa.R.Crim.P. 121 and its colloquy

requirements do not apply to situations where forfeiture is found). The court 

pointed to “a pattern of serious misconduct, abuse, threats, and an utter 

failure to collaborate [in] his own defense.” Trial Court Opinion, 2/4/16, at 

5. Appellant does not challenge that finding on appeal.6

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5

 Additionally, the court cited Appellant’s “repeated and numerous demands 

to proceed pro se” and the fact that the court appointed standby counsel. 

Trial Court Opinion, 2/4/16, at 5. The record reveals that on September 26, 

2013, at the pretrial conference, the court asked Appellant if it was still his 

intention to represent himself. N.T. Pretrial Conference, 9/26/13, at 1. 

Appellant responded in the affirmative. Appellant added, however, that he 

wanted to dismiss Mr. Sembach as standby counsel. The court was 

amenable if Appellant hired a lawyer to represent him. Again, Appellant 

insisted that he was representing himself, but that he had a problem with 

Mr. Sembach as standby counsel. The court advised that “pending the entry 

of an appearance by any other lawyer that you may choose to hire in any 

capacity, . . I’m not dismissing court-appointed standby counsel.” Id. at 7. 

See Commonwealth v. Kelly, 5 A.3d 370 (Pa.Super. 2010) (recognizing 

that the constitutional right to counsel of one's own choice is not absolute 

and that where court-appointed counsel is involved, a defendant does not 

have the right to choose other assigned counsel unless a substantial reason 

exists). 

6

 The record contains numerous accounts of Appellant’s abusive treatment 

of both paid and appointed counsel, resulting in the withdrawal of three 

(Footnote Continued Next Page)
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Were we able to overlook Appellant’s failure to allege counsel’s 

ineffectiveness, we would find nevertheless that Appellant is not entitled to 

relief. He was required to plead and prove, by a preponderance of the 

evidence, three elements: (1) the underlying legal claim has arguable merit; 

(2) counsel had no reasonable basis for his action or inaction; and (3) that 

he suffered prejudice because of counsel's action or inaction. 

Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008) (citing 

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)). The prejudice prong 

proves insurmountable. 

Spotz and Mallory are instructive in this regard. In Spotz, the 

petitioner alleged inter alia that the waiver of his right to counsel during the 

guilt phase of his trial was not voluntary, knowing, or intelligent; that he was 

not competent to waive this right; that counsel was ineffective for failing to 

object to the trial court's allegedly inadequate colloquy, and for numerous 

deficiencies in the defense presented. Noting the Rule 121 requirements for 

a waiver colloquy, our High Court relied upon its earlier decision in 

Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008), for the proposition 

(Footnote Continued) _______________________

attorneys. At jury selection, standby counsel Mr. Sembach placed on the 

record that when he made himself available to Appellant for questions, 

Appellant told him “shut up, you can leave now.” N.T. Jury Selection, 

11/4/13, at 20. He testified to other instances of foul language and serious 

mistreatment by Appellant. In light of our disposition, we need not 

determine if Appellant’s conduct rose to the level of forfeiture of counsel. 
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that the waiver rules were not the equivalent of the rights the rules were 

designed to protect. The Court clarified:

A waiver colloquy is a procedural device; it is not a constitutional 

end or a constitutional “right.” . . . An on-the-record colloquy is a 

useful procedural tool whenever the waiver of any significant 

right is at issue, constitutional or otherwise, e.g., waiver of a 

trial, waiver of the right to counsel, waiver of the right to call 

witnesses, waiver of the right to cross-examine witnesses, waiver 

of rules-based speedy trial time limits, etc. But the colloquy does 

not share the same status as the right itself. 

Spotz, supra at 263 (quoting Mallory, supra at 697). 

Where a petitioner asserts ineffective assistance of counsel based on 

counsel’s failure to object to a defective colloquy, it is not enough to prove 

that the colloquy was defective; the petitioner must prove prejudice as with 

any other ineffectiveness claim. To establish prejudice, the petitioner must 

demonstrate a reasonable probability, considering the totality of the 

circumstances, that but for counsel's ineffectiveness, he would not have 

waived the right at issue. Mallory, supra at 698-704. 

Herein, had the ineffectiveness issue not been waived, Appellant could 

not establish prejudice. In considering such a claim of ineffectiveness, the 

court considers the totality of the circumstances and the entire record, not 

just the colloquy itself. Id. Appellant testified at the PCRA hearing that he 

would have proceeded pro se even if his counsel had ensured that the court 
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provided a Rule 121 colloquy.7 Further evidence of a lack of prejudice was 

supplied by standby counsel, Mr. Sembach. He testified at the evidentiary 

hearing that, prior to trial, he presented a document entitled 

“Acknowledgement of Availability of Counsel” to Appellant for his signature. 

Commonwealth Exhibit 1. He read the bolded portions of the document to 

Appellant, the contents of which were “very similar or identical” to the Rule 

121 waiver of counsel. In preparing it, counsel wanted to ensure that 

Appellant’s waiver of counsel was knowingly, voluntarily, and intelligently 

done. Id. at 45. Appellant refused to sign it, although Deputy Laurie Kozak 

signed the document acknowledging that Mr. Sembach reviewed the 

document with Appellant. Mr. Sembach also testified that, in a letter he sent 

to Appellant regarding a plea offer, he explained the statutory maximums 

and delineated the guideline ranges for each offense. N.T. PCRA Hearing, 

12/1/15, at 35. Mr. Sembach concluded that Appellant “wanted to proceed 

pro se” and “[he] knew exactly what he was getting into.” Id. at 43. Based 

on the totality of circumstances, Appellant failed to demonstrate prejudice 

and would not be entitled to relief. 

Appellant’s second issue, that the trial court erred in declining his 

request to have standby counsel assume representation at trial, also does 

____________________________________________

7 While the Commonwealth maintains that Appellant’s admission that he 

would have represented himself anyway constitutes a waiver, we disagree 

with that conclusion. 
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not afford relief. It appears from the record that Appellant became 

frustrated in his attempt to impeach one of the victims regarding her prior 

statements to police detailing when the charged offenses occurred. N.T. 

Trial, 11/12/13, at 99-100. Following a recess to permit Appellant to consult 

with standby counsel, a sidebar was held off the record. The trial court then 

asked Appellant whether he was trying to suggest that the victim’s 

statement referred to a later timeframe for the Mifflin County incidents. 

Appellant responded that he “was trying to figure out she gave three 

different statements of when the incident happened.” Id. at 101. At that 

point, standby counsel interjected that, “Mr. Cook has told me that if I will 

represent him fairly that he would allow me to do the questioning.” Id. The 

court refused, stating that the defense would not be permitted to go back 

and forth between a lawyer and pro se representation. Attorney Sembach 

acquiesced in the court’s ruling, and responded, “Understood, your Honor.” 

Id. Appellant then asked, “I can’t have him represent me now?” Id. at 

102. The court reviewed Appellant’s difficulties with prior counsel, reminded 

Appellant that he chose to proceed without counsel, that he had standby 

counsel available, and suggested that counsel help Appellant develop 

questions on this issue. Id. at 102-03. Appellant thanked the court, 

accepted its suggestion, consulted with counsel, and when the proceedings 

resumed, completed his cross-examination of the witness. 
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Although Appellant now characterizes the exchange as a request that 

Mr. Sembach take over his representation for the remainder of the trial, the 

trial court did not interpret it as such. The court construed it as a request 

that Mr. Sembach cross-examine and impeach that witness with her prior 

statements; Appellant would then resume his self-representation. Hybrid 

representation is not countenanced. Commonwealth v. Padilla, 80 A.3d 

1238 (Pa. 2013). Since it is not patently clear that Appellant sought to 

revoke his waiver of counsel for the remainder of the trial, we find no factual 

support in the record to support Appellant’s claim of trial court error. See

Commonwealth v. Bryant, 855 A.2d 726, 737 (Pa. 2004) (citing Buhl v. 

Cooksey, 233 F.3d 783, 800 (3d Cir. 2000), for the proposition that, "[i]t is 

well established that a defendant can waive the right of self-representation

after asserting it.”).

Furthermore, in that this issue implicates trial court error, it could 

have been asserted on direct appeal. Since Appellant was fully apprised of 

his direct appeal rights and right to counsel at his sentencing, this issue is 

waived under 42 Pa.C.S. § 9544(b). See Commonwealth v. Berry, 877 

A.2d 479 (Pa.Super. 2005) (en banc) (failure to file a direct appeal results in 

waiver of non-effectiveness and non-illegal sentencing issues); in accord 

Commonwealth v. Walls, 993 A.2d 289 (Pa.Super. 2010); 

Commonwealth v. Jones, 932 A.2d 179 (Pa.Super. 2007) (recognizing 
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that trial court error had to be pursued on direct appeal or the defendant 

would forego the opportunity to litigate it).

Moreover, Appellant did not and could not assert any claim of counsel 

ineffectiveness. As our High Court held in Commonwealth v. Blakeney, 

108 A.3d 739, 756 (Pa. 2014), a defendant “who chooses to represent 

himself cannot obtain post-conviction relief by raising a claim of his own 

ineffectiveness or that of standby counsel.” The Blakeney Court explained 

that, “the limited role of standby counsel is essential to satisfy the United 

States Supreme Court's directive that a defendant's choice to proceed pro se 

must be honored out of that respect for the individual which is the lifeblood 

of the law even when the defendant acts to his own detriment.” Blakeney, 

supra at 756-757. No relief is due on this ground. 

We note, however, that Appellant was sentenced to two mandatory 

minimum sentences based on the age of his victims. In Alleyne, supra, the 

Supreme Court held that any fact that increases the penalty for a crime 

must be treated as an element of the offense. Hence, it must be submitted 

to a jury rather than a judge and found beyond a reasonable doubt. In 

recognition that post-Alleyne, “application of a mandatory minimum 

sentence gives rise to illegal sentence concerns,” Commonwealth v. 

Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc), and that such claims 
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are non-waivable, we sua sponte review the legality of Appellant’s 

sentence.8 See Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super. 

2014) ("[A] challenge to the legality of the sentence can never be waived 

and may be raised by this Court sua sponte."). 

In Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), our Supreme 

Court affirmed this Court’s holding that 42 Pa.C.S. § 9718, which imposed a 

mandatory minimum sentence for violation of 18 Pa.C.S. §3123(a)(7) 

(involuntary deviate sexual intercourse of a minor), pursuant to judicial factfinding of facts that were not elements of the crime, was facially 

unconstitutional, non-severable, and void under Alleyne. That same facially 

unconstitutional statute, 42 Pa.C.S. § 9718, was the basis for the imposition 

of the mandatory minimum sentences herein. 

Appellant is entitled to the benefit of the ruling in Alleyne as his 

judgment of sentence became final after Alleyne was decided on June 17, 

2013, and the instant PCRA petition is timely filed. Compare 

Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (declining to give

Alleyne retroactive effect to cases on timely collateral review when the 

defendant's judgment of sentence was finalized before Alleyne was 

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8 The issue whether Alleyne claims are illegality of sentence claims that 

cannot be waived is presently pending before the Pennsylvania Supreme 

Court. See Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015) 

(allocatur granted September 18, 2015).
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decided). For this reason, we vacate judgment of sentence and remand for 

resentencing consistent with this memorandum and without the application 

of the § 9718 mandatory minimum. 

Order vacated. Judgment of sentence vacated. Case remanded for 

resentencing. Jurisdiction relinquished. 

President Judge Gantman joins the memorandum.

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/27/2016