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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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, 201 3 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 STRASSBURGE R, 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 t he Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful rev iew, 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 tr ial on the same day, Appellant was convicted of Aggravated Assault with a Deadly Weapon, Person Not to Possess a Firearm, Car rying a Firearm Without a License, Terroristic Threats, Rec klessly Endangering Another Person, Simple Assault, Disorde rly Conduct and Criminal Mischief. Appellant elected to waive his right to a Pre-Sentence Report and this Court sentenced Appell ant to [51] to [100] months[’] incarceration on the Aggravated Assault count and [60] to [120] months[’] consecutive on th e Person Not

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* Retired Senior Judge assigned to the Superior Cour t.J-S72008-14

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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 t he Public Defender, filed a Notice of Appeal. On June 29, 20 12, the Superior Court of Pennsylvania affirmed on the only issue raised on appeal: that the evidence was insufficient to su pport 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 Super. 2012) (unpublished memorandum).]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 den ied the Petition for Allowance of Appeal on February 6, 201 3. [ 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 o n January 15, 2014 and a Concise Statement of Errors Complained o f 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 pr obing 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 limite d to examining whether the lower court’s determination is supported by the evi dence 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,J-S72008-14

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356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received ineffective assistance of counsel, our Supreme Cour t has stated that: [A] PCRA petitioner will be granted relief only whe n he proves, by a preponderance of the evidence, that his convic tion or sentence resulted from the “[i]neffective assistanc e of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no re liable 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 petiti oner. To obtain relief, a petitioner must demonstrate that counsel’ s performance was deficient and that the deficiency prejudiced th e petitioner. A petitioner establishes prejudice when he demonstrat es “that there is a reasonable probability that, but for cou nsel’s unprofessional errors, the result of the proceeding would have been different.” ... [A] properly pled claim of ineff ectiveness posits that: (1) the underlying legal issue has arg uable merit; (2) counsel’s actions lacked an objective reasonabl e basis; and (3) actual prejudice befell the petitioner from cou nsel’s act or omission. Commonwealth v. Johnson , 966 A.2d 523, 532-33 (Pa. 2009) (citations omitted). Appellant avers that his appellate counsel acted i neffectively by not challenging the validity of the colloquy regarding Appellant’s waiver of his right to counsel. Appellant maintains that the wai ver was inadequate because it did not satisfy the requirements set for th in Pennsylvania Rule of Criminal Procedure 121. That rule states, in relev ant part: (A) Generally. (1) The defendant may waive the right to be represe nted by counsel. (2) To ensure that the defendant's waiver of the ri ght to counsel is knowing, voluntary, and intelligent, the judge orJ-S72008-14

- 4 - issuing authority, at a minimum, shall elicit the f ollowing 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 defenda nt is indigent; (b) that the defendant understands the nature of th e 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 sh e waives the right to counsel, the defendant will sti ll 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 additio n 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 a ttorney 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 i t is “the trial judge who [is] ultimately responsible for ensuring that t he defendant is questioned

about the six areas discussed above and for determi ning whether theJ-S72008-14

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defendant was indeed making an informed and indepen dent decision to

waive counsel.” Commonwealth v. Davido , 868 A.2d 431, 437 (Pa. 2005) (citation and quotation marks omitted). Accordingl y, 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 h imself, the failure “to conduct a thorough, on-the-record colloquy befo re 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 tria l court’s oral colloquy regarding his waiver of his right to counsel was in adequate because, while the court stated the various offenses with which Ap pellant was charged, and related the potential maximum sentences he faced fo r each crime, the court

did not detail the elements of each offense. Moreo ver, the written colloquy, filled out by Appellant’s counsel and signed by App ellant, also did not list the specific charges Appellant faced, or the elements o f those offenses. See “Waiver of Counsel” Form, 3/11/11, at 1 (unpaginate d). While Appellant acknowledges that at the PCRA hearing, his trial co unsel 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 o f an on-the-recordJ-S72008-14

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statement of the elements of the charges pending ag ainst him invalidated his waiver of the right to counsel. Appellant then avers that appellate counsel was ine ffective for not challenging the validity of his waiver colloquy on direct appeal. He claims that had counsel done so, this Court would have fou nd the colloquy inadequate and awarded Appellant a new trial. In s upport 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 “spec ify 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 ra nges for each of the offenses charged[,]” yet at no point was Clyburn in formed 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 colloqu y was defective, vacated Clyburn’s judgment of sentence, and remande d 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 knowi ng, 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 colloquyJ-S72008-14

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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 acce pting waiver of counsel)). We agree with Appellant that the defect in the coll oquy in Clyburn is analogous to the defect in the instant colloquy. I n both cases, the written waiver colloquy did not set forth the specific char ges or elements thereof, and during the oral colloquy, the elements of the c harges were not stated. Moreover, as in Clyburn , nothing in the record of the colloquy proceeding indicates that the trial court ensured that Appella nt was aware of the nature and elements of the charges pending against him. A ccordingly, Appellant has convinced us that had appellate counsel challen ged the waiver colloquy on direct appeal, we would have held that the collo quy 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 reason able basis for not raising this issue. At the PCRA hearing, appel late counsel did not take the stand. However, the parties stipulated that co unsel’s testimony would

be the same as that which was outlined in the “Atto rney 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:J-S72008-14

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On or about October 1, 2013[,] I spoke with Attorne y Joshua Roberts regarding this matter. Attorney Roberts st ated that he did not raise the issue [of the deficient waiver of counsel colloquy] because he did not notice anything defici ent in the colloquy, and if there was an issue, he did not thi nk it could be dealt with on direct appeal, as it did not appear t o violate [Appellant’s] due process rights. In addition, Att orney Roberts thought that it was a better strategy to focus on t he issue he felt had a better chance of appellate success and not wa ter 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 tha t he did not want to “water down the appellate brief with seemingly weaker issu es,” were not reasonable grounds for counsel’s failure to assert this issue. Moreover, while the inadequate waiver may not have constituted a violat ion of Appellant’s due process rights, it clearly constituted a violation of his right to representation by counsel. Accordingly, counsel did not have a re asonable basis for not challenging the adequacy of Appellant’s waiver-of-c ounsel colloquy. Finally, we must determine if Appellant was prejudi ced by appellate counsel’s failure to raise this issue. Appellant a rgues that he was prejudiced because, had counsel challenged the adequacy of his waiver colloquy on direct appeal, we would have concluded it was inade quate 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.J-S72008-14

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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 inadeq uate.” Commonwealth’s Brief at 23-24. Nevertheless, the C ommonwealth argues that Appellant was not prejudiced because the total ity of the circumstances indicate that his waiver of his right to counsel wa s knowing, intelligent, and voluntary. We need not address the specifics of th e Commonwealth’s complex argument because it misconstrues the type o f prejudice Appellant must prove in this case. Appellant is contending t hat his appellate counsel acted ineffectively; accordingly, our prejudice ana lysis must focus on whether Appellant has shown “that there is a reason able probability that the outcome of the proceedings would have been differen t 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 ap peal, we would have concluded that it was inadequate and remanded for a new trial. Therefore, Appellant has proven that he was prejudiced by appe llate counsel’s ineffective representation. Accordingly, we are compelled to conclude that appe llate 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 proceedin gs. Jurisdiction relinquished.J-S72008-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/22/2014