J-S72008-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

DARRELL BRAY, 

 Appellant No. 119 WDA 2014 

Appeal from the PCRA Order Entered December 18, 2013 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0015503-2008 

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.* 

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 22, 2014 

 Appellant, Darrell Bray, appeals from the December 18, 2013 order 

denying his petition for relief filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we are compelled to 

vacate the PCRA court’s order and remand for a new trial. 

 The PCRA court set forth the procedural history of this case as follows: 

 On March 11, 2011, Appellant ... waived his right to a jury 

trial and his right to counsel. After a nonjury trial on the same 

day, Appellant was convicted of Aggravated Assault with a 

Deadly Weapon, Person Not to Possess a Firearm, Carrying a 

Firearm Without a License, Terroristic Threats, Recklessly 

Endangering Another Person, Simple Assault, Disorderly Conduct 

and Criminal Mischief. Appellant elected to waive his right to a 

Pre-Sentence Report and this Court sentenced Appellant to [51] 

to [100] months[’] incarceration on the Aggravated Assault 

count and [60] to [120] months[’] consecutive on the Person Not 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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to Possess count with no further penalty imposed on the 

remaining counts. 

 Appellant did not file a Post-Sentence Motion. On April 28, 

2011, Appellant, now represented by the Office of the Public 

Defender, filed a Notice of Appeal. On June 29, 2012, the 

Superior Court of Pennsylvania affirmed on the only issue raised 

on appeal: that the evidence was insufficient to support a guilty 

verdict on the Aggravated Assault count. [Commonwealth v. 

Bray, 53 A.3d 944 (Pa. Super. 2012) (unpublished 

memorandum).] The Supreme Court of Pennsylvania denied the 

Petition for Allowance of Appeal on February 6, 2013. 

[Commonwealth v. Bray, 63 A.3d 1242 (Pa. 2013).] 

 On May 23, 2013, Appellant filed, pro se, a ... []PCRA[] 

Petition. On December 16, 2013, this Court held an evidentiary 

hearing on the Petition and on December 18, 2013[, it] denied 

the Petition. Appellant filed a Notice of Appeal on January 15, 

2014 and a Concise Statement of Errors Complained of on 

Appeal on February 7, 2014. 

PCRA Court Opinion (PCO), 4/21/14, at 2-3.

On appeal, Appellant presents one question for our review: 

1. Did the [PCRA] Court err in denying [Appellant’s] Petition for 

Post-Conviction Relief when it found the appellate attorney to be 

effective, despite the attorney’s failure to raise a meritorious 

claim regarding the defectiveness of the waiver of counsel 

colloquy, when the Trial Court did not conduct a probing on the 

record colloquy before [Appellant] elected to waive his right to 

counsel? 

Appellant’s Brief at 3. 

 To begin, we note that “[t]his Court’s standard of review from the 

grant or denial of post-conviction relief is limited to examining whether the 

lower court’s determination is supported by the evidence of record and 

whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 

516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 
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356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received 

ineffective assistance of counsel, our Supreme Court has stated that: 

[A] PCRA petitioner will be granted relief only when he proves, 

by a preponderance of the evidence, that his conviction or 

sentence resulted from the “[i]neffective assistance of counsel 

which, in the circumstances of the particular case, so 

undermined the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken place.” 

Generally, counsel’s performance is presumed to be 

constitutionally adequate, and counsel will only be deemed 

ineffective upon a sufficient showing by the petitioner. To obtain 

relief, a petitioner must demonstrate that counsel’s performance 

was deficient and that the deficiency prejudiced the petitioner. A 

petitioner establishes prejudice when he demonstrates “that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” ... [A] properly pled claim of ineffectiveness 

posits that: (1) the underlying legal issue has arguable merit; 

(2) counsel’s actions lacked an objective reasonable basis; and 

(3) actual prejudice befell the petitioner from counsel’s act or 

omission. 

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations 

omitted). 

 Appellant avers that his appellate counsel acted ineffectively by not 

challenging the validity of the colloquy regarding Appellant’s waiver of his 

right to counsel. Appellant maintains that the waiver was inadequate 

because it did not satisfy the requirements set forth in Pennsylvania Rule of 

Criminal Procedure 121. That rule states, in relevant part: 

(A) Generally. 

(1) The defendant may waive the right to be represented 

by counsel. 

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

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

(3) The judge or issuing authority may permit the attorney for 

the Commonwealth or defendant's attorney to conduct the 

examination of the defendant pursuant to paragraph (A)(2). The 

judge or issuing authority shall be present during this 

examination. 

Pa.R.Crim.P. 121(a). 

 In addition, our Supreme Court has directed 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 
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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, 300-301 (Pa. Super. 2012); see also 

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

In the instant case, Appellant argues that the trial court’s oral colloquy 

regarding his waiver of his right to counsel was inadequate because, while 

the court stated the various offenses with which Appellant was charged, and 

related the potential maximum sentences he faced for each crime, the court 

did not detail the elements of each offense. Moreover, the written colloquy, 

filled out by Appellant’s counsel and signed by Appellant, also did not list the 

specific charges Appellant faced, or the elements of those offenses. See 

“Waiver of Counsel” Form, 3/11/11, at 1 (unpaginated). While Appellant 

acknowledges that at the PCRA hearing, his trial counsel stated that she 

reviewed the elements of each charge with Appellant, he claims that 

counsel’s off-the-record discussion was inadequate to satisfy Rule 

121(a)(3)’s requirement that the trial court “shall be present during th[e] 

examination.” Appellant argues that the omission of an on-the-record 
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statement of the elements of the charges pending against him invalidated 

his waiver of the right to counsel. 

Appellant then avers that appellate counsel was ineffective for not 

challenging the validity of his waiver colloquy on direct appeal. He claims 

that had counsel done so, this Court would have found the colloquy 

inadequate and awarded Appellant a new trial. In support of this assertion, 

Appellant relies on Clyburn. There, we held that Clyburn’s waiver of her 

right to counsel was inadequate. Clyburn, 42 A.3d at 301-302. First, we 

pointed out that the written colloquy did not “specify the charges brought 

against [Clyburn] and the elements of each of those charges.” Id. at 301. 

During the oral colloquy, the Commonwealth informed Clyburn of “the 

permissible range of sentences and the guideline ranges for each of the 

offenses charged[,]” yet at no point was Clyburn informed of “the nature and 

elements of each of those charges, as contemplated by Rule 121(A)(2)(b).” 

Id. Accordingly, we concluded that the Rule 121 colloquy was defective, 

vacated Clyburn’s judgment of sentence, and remanded for a new trial. Id. 

at 299-302 (relying on Commonwealth v. Starr, 664 A.2d 1326, 1335 (Pa. 

1995) (mandating a “probing colloquy” to determine whether the 

defendant’s waiver of his right to counsel is knowing, voluntary, and 

intelligent; colloquy requires court to ensure “the defendant understands the 

nature of the charges against him and the elements of each of those 

charges”); Commonwealth v. Payson, 723 A.2d 695, 701 (Pa. Super. 

1999) (holding that failure to conduct a thorough, on-the-record colloquy 
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before allowing a defendant to proceed to trial pro se constitutes reversible 

error); Commonwealth ex rel. Clinger v. Russell, 213 A.2d 100, 102 (Pa. 

Super. 1965) (stating it is incumbent on the court to fully advise the accused 

of the nature and elements of the crime before accepting waiver of 

counsel)). 

We agree with Appellant that the defect in the colloquy in Clyburn is 

analogous to the defect in the instant colloquy. In both cases, the written 

waiver colloquy did not set forth the specific charges or elements thereof, 

and during the oral colloquy, the elements of the charges were not stated. 

Moreover, as in Clyburn, nothing in the record of the colloquy proceeding 

indicates that the trial court ensured that Appellant was aware of the nature 

and elements of the charges pending against him. Accordingly, Appellant 

has convinced us that had appellate counsel challenged the waiver colloquy 

on direct appeal, we would have held that the colloquy was inadequate for 

the same reasons expressed in Clyburn, and based on the same cases 

relied upon therein. 

Next, we must assess whether counsel had any reasonable basis for 

not raising this issue. At the PCRA hearing, appellate counsel did not take 

the stand. However, the parties stipulated that counsel’s testimony would 

be the same as that which was outlined in the “Attorney Certificate” 

attached to Appellant’s amended PCRA petition. See Commonwealth’s Brief 

at 14 (citing PCRA Hearing, 12/16/13, at 33). That certificate states: 
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On or about October 1, 2013[,] I spoke with Attorney Joshua 

Roberts regarding this matter. Attorney Roberts stated that he 

did not raise the issue [of the deficient waiver of counsel 

colloquy] because he did not notice anything deficient in the 

colloquy, and if there was an issue, he did not think it could be 

dealt with on direct appeal, as it did not appear to violate 

[Appellant’s] due process rights. In addition, Attorney Roberts 

thought that it was a better strategy to focus on the issue he felt 

had a better chance of appellate success and not water down the 

appellate brief with seemingly weaker issues. 

Amended Petition, 10/15/13, at 13. 

 Based on our discussion of the apparent inadequacy of Appellant’s 

waiver colloquy, we conclude that appellate counsel’s claims that he “did not 

notice anything deficient in the colloquy,” and that he did not want to “water 

down the appellate brief with seemingly weaker issues,” were not reasonable 

grounds for counsel’s failure to assert this issue. Moreover, while the 

inadequate waiver may not have constituted a violation of Appellant’s due 

process rights, it clearly constituted a violation of his right to representation 

by counsel. Accordingly, counsel did not have a reasonable basis for not 

challenging the adequacy of Appellant’s waiver-of-counsel colloquy. 

Finally, we must determine if Appellant was prejudiced by appellate 

counsel’s failure to raise this issue. Appellant argues that he was prejudiced 

because, had counsel challenged the adequacy of his waiver colloquy on 

direct appeal, we would have concluded it was inadequate and remanded for 

a new trial. Based on the similarities between the present colloquy and the 

colloquy which we deemed inadequate in Clyburn, we agree. 
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We note that the Commonwealth essentially concedes that based on 

the record as it existed at the time of Appellant’s direct appeal, this Court 

“undoubtedly would [have found] the colloquy inadequate.” 

Commonwealth’s Brief at 23-24. Nevertheless, the Commonwealth argues 

that Appellant was not prejudiced because the totality of the circumstances 

indicate that his waiver of his right to counsel was knowing, intelligent, and 

voluntary. We need not address the specifics of the Commonwealth’s 

complex argument because it misconstrues the type of prejudice Appellant 

must prove in this case. Appellant is contending that his appellate counsel 

acted ineffectively; accordingly, our prejudice analysis must focus on 

whether Appellant has shown “that there is a reasonable probability that the 

outcome of the proceedings would have been different but for counsel’s 

ineffectiveness.” Commonwealth v. Chmiel, 30 A.3d 1111, 1127-1128 

(Pa. 2011). Based on our discussion, supra, it is apparent had appellate 

counsel challenged the waiver colloquy on direct appeal, we would have 

concluded that it was inadequate and remanded for a new trial. Therefore, 

Appellant has proven that he was prejudiced by appellate counsel’s 

ineffective representation. 

Accordingly, we are compelled to conclude that appellate counsel acted 

ineffectively. Therefore, we vacate the PCRA court’s order denying 

Appellant’s petition and remand for a new trial. 

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 12/22/2014