J-S31045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRYHEEM KAMEEL JACOBS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1123 EDA 2023

Appeal from the Judgment of Sentence Entered April 3, 2023

In the Court of Common Pleas of Bucks County Criminal Division at 

No(s): CP-09-CR-0003069-2022

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 27, 2023

Bryheem Kameel Jacobs appeals from the judgment of sentence entered 

following his guilty plea to driving under the influence (“DUI”)– controlled 

substance, 75 Pa.C.S.A. § 3802(d)(2). He maintains the court erred in 

allowing him to proceed pro se at the guilty plea hearing. We conclude Jacobs 

did not knowingly, voluntarily, and intelligently waive his right to counsel. We 

therefore vacate the judgment of sentence and remand for further 

proceedings.

On March 2, 2023, Jacobs appeared before the trial court and his counsel 

requested a continuance because Jacobs was applying for restrictive probation 

and had an upcoming appointment for a drug and alcohol evaluation.

1 The 

Commonwealth did not object to the continuance, which the court granted. 

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1 The transcript states Michael Kotik, Esq. represented Jacobs, and Kotik spoke 

at the hearing on Jacobs’ behalf.
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On April 3, 2023, Jacobs appeared for a guilty plea and sentencing. His 

counsel was not present. At the plea hearing, the court did not conduct a 

colloquy to determine whether Jacobs knowingly, voluntarily, and intelligently 

waived his right to counsel. Jacobs entered a negotiated guilty plea to DUI 

and the Commonwealth nolle prossed a driving while operating privilege 

suspended or revoked charge. The court sentenced Jacobs to six months’ 

restrictive probation, with the first 72 hours to be served on home 

confinement. The sentence was concurrent to a sentence Jacobs was serving

at another docket. 

After the plea and sentencing, new counsel entered her appearance for 

Jacobs and filed a timely notice of appeal. Jacobs raises the following issue: 

Did the trial court err in allowing [Jacobs] to proceed pro se

where [Jacobs] was never advised of his absolute right to 

counsel and where [Jacobs] did not knowingly, voluntarily 

and intelligently waived his right to counsel?

Jacobs’ Br. at 6.

“Both the right to counsel and the right to self-representation are 

guaranteed by the Sixth Amendment to the United States Constitution and by 

Article I, Section Nine of the Pennsylvania Constitution.” Commonwealth v. 

Forrester-Westad, 282 A.3d 811, 816 (Pa.Super. 2022) (quoting 

Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa.Super. 2017)). 

“A [trial court’s] thorough inquiry into the accused’s appreciation of both 

the right to counsel and the right to represent oneself must be used in . . .

every critical stage of a criminal proceeding,” including a guilty plea hearing. 
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Id. at 816-17 (quoting Johnson, 158 A.3d at 122) (emphasis and internal 

quotation marks omitted). “[W]hen a defendant seeks to waive the right to 

counsel, the trial court is required to conduct, on the record, a full and 

complete waiver colloquy to determine whether the defendant’s waiver is 

knowing, voluntary, and intelligent.” Id. at 817 (quoting Commonwealth v. 

Brazil, 701 A.2d 216, 219 (Pa. 1997)). Pennsylvania Rule of Criminal 

Procedure 121 sets forth the minimum requirements for a valid waiver-ofcounsel colloquy and requires the court elicit the following information from 

the defendant to ensure the waiver is knowing, voluntary, and intelligent:

(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.
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Pa.R.Crim.P. 121(A)(2)(a)-(f). “A trial court’s failure to conduct a valid 

colloquy before allowing a defendant to proceed pro se constitutes reversible 

error.” Forrester-Westad, 282 A.3d at 817 (quoting Commonwealth v. 

Floyd, 257 A.3d 13, 18 (Pa.Super. 2020)) (brackets omitted).

Here, Jacobs appeared at his guilty plea hearing without counsel and 

the court failed to conduct any colloquy to determine whether he voluntarily, 

knowingly, and intelligently waived his right to counsel. The court did not even 

acknowledge counsel’s absence. The Commonwealth concedes that no waiver 

of counsel colloquy was conducted, that Jacobs’ right to counsel was violated, 

and the conviction must be vacated and the case remanded for further 

proceedings. See Commonwealth’s Br. at 4. Because Jacobs did not waive his 

right to counsel, conducting the guilty plea without counsel was reversible 

error.

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Date: 12/27/2023