J-S77037-14

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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GARY G. BLANK,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1792 EDA 2014

Appeal from the Judgment of Sentence Entered April 24, 2014

in the Court of Common Pleas of Bucks County,

Criminal Division, at No(s): CP-09-CR-0002351-2007

BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 11, 2015

Gary G. Blank (Appellant) has appealed, pro se, from his judgment of 

sentence entered following the revocation of his probation. We remand with 

instructions.

The record reveals the following facts. Appellant was represented at 

his revocation hearing, at the conclusion of which his privately-retained 

counsel, Jason Rubenstein, orally sought to withdraw, citing Appellant’s 

inability to afford counsel. The trial court denied the motion, stating: “You 

took this representation on, you are going to have to at least protect him 

with regard to the time period to file anything [(i.e., a post-sentence motion 

and/or appeal)], and that is that. When you do all that, at that point then 

the application can be made for you to withdraw.” N.T., 4/24/2014, at 38.

The docket reflects no subsequent filings by counsel. 
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Appellant, pro se, filed a notice of appeal on May 15, 2014. On May 

19, 2014, he filed a document docketed as “Petition to Remove Attorney” 

which states, in its entirety, as follows: “I would like to remove Jason 

Rubenstien [sic] from my name on above case ID # and please send me an 

application for in forma pauperious [sic] to proceed with my appeal in which 

an [sic] notice of appeal was mailed in dated May 9, 2014 pro se.” Petition 

to Remove Attorney, 5/19/2014. Appellant then filed the application to 

proceed IFP and another notice of appeal. 

On June 5, 2014, the trial court entered an order providing that 

Appellant’s “petition to proceed pro se is hereby approved.” Order, 

6/5/2014.1 The trial court subsequently entered orders directing Appellant 

to file a statement of errors complained of on appeal and granting 

Appellant’s IFP petition. 

“It is fundamental that an accused has a constitutional right to counsel 

on direct appeal.” Commonwealth v. Kent, 797 A.2d 978, 980 (Pa. Super. 

2002). “When the defendant seeks to waive the right to counsel..., the 

judge shall ascertain from the defendant, on the record, whether this is a 

 

1 By implication, this order granted Attorney Rubenstein leave to withdraw 

his appearance, and he is not listed as counsel of record on the trial court 

docket contained in the certified record. However, the docket indicates that 

Appellant is represented by William L. Goldman, who was served with notice 

of the filing of transcripts in this case on July 17, 2014, although it also 

indicates that Attorney Goldman did not file an entry of appearance. 
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knowing, voluntary, and intelligent waiver of counsel.” Pa.R.Crim.P. 121(C). 

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

To ensure that the defendant’s waiver of the right to 

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

issuing authority, at a minimum, shall elicit the following 

information from the defendant:

(a) that the defendant understands that he or she 

has the right to be represented by counsel, and the 

right to have free counsel appointed if the defendant 

is indigent; 

(b) that the defendant understands the nature of the 

charges against the defendant and the elements of 

each of those charges; 

(c) that the defendant is aware of the permissible 

range of sentences and/or fines for the offenses 

charged; 

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

waives the right to counsel, the defendant will still be 

bound by all the normal rules of procedure and that 

counsel would be familiar with these rules; 

(e) that the defendant understands that there are 

possible defenses to these charges that counsel 

might be aware of, and if these defenses are not 

raised at trial, they may be lost permanently; and 

(f) that the defendant understands that, in addition 

to defenses, the defendant has many rights that, if 

not timely asserted, may be lost permanently; and 

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

otherwise timely raised by the defendant, these 

errors may be lost permanently.

Pa.R.Crim.P. 121(A)(2). 
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The record before us lacks clear indication that Appellant wished to 

proceed pro se, let alone that he intelligently, voluntarily, and knowingly 

waived his right to counsel. Accordingly, we remand for the trial court to 

comply with its duties under Rule 121. 

Within 60 days of this order, the trial court shall conduct a hearing to 

determine (1) whether Appellant wishes to proceed pro se; (2) if Appellant 

does wish to proceed pro se, to hold a colloquy to determine whether he 

knowingly and intelligently waives his right to counsel; (3) if Appellant does 

not wish to proceed pro se, given his IFP status, to appoint counsel to 

represent him. 

If the trial court determines that Appellant knowingly and intelligently 

waives his right to counsel, it shall certify its decision to this Court, and we 

shall proceed with the previously-submitted briefs. 

If, on the other hand, the trial court determines that counsel will be 

appointed, the trial court shall establish a new deadline for counsel to file a 

statement of matters complained of on appeal, after which the trial court 

shall file a new opinion and, following certification of the decision by the trial 

court, the Superior Court Prothonotary shall establish a new briefing 

schedule.

Case remanded with instructions. Panel jurisdiction retained. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/2015