J-S46042-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JUSTIN D. SCHOENFELD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 945 WDA 2022

Appeal from the Judgment of Sentence Entered July 25, 2022

In the Court of Common Pleas of Cambria County 

Criminal Division at No(s): CP-11-CR-0001007-2021

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: May 22, 2024

Justin D. Schoenfeld (“Schoenfeld”) appeals from the judgment of 

sentence imposed following his convictions of three counts of driving under 

the influence (“DUI”) and a related offense.

1

 We vacate the judgment of 

sentence and remand for a new trial. 

The trial court summarized the factual background of this appeal as 

follows: 

At 10:43 p.m. on May 5, 2021, Summerhill Township Police 

Officer Donald Wyar ([“Officer Wyar”]) was dispatched to the 

scene of a one vehicle accident. Upon arriving, [Officer] Wyar 

observed Schoenfeld, the only occupant of the vehicle, seated 

behind the steering wheel and complaining of neck and back pain.

[Officer] Wyar observed: a case of beer on the front passenger 

side floor; empty cans of alcoholic beverages in the vehicle; and 

an odor of alcohol coming from Schoenfeld. Emergency personnel 

arrived, removed Schoenfeld from the vehicle, and transported 

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1 See 75 Pa.C.S.A. § 3802(d)(1)(ii) (related to amphetamines), (d)(1)(ii) 

(related to methamphetamines), and (d)(2) (related to combination of drugs 

resulting in impairment); 75 Pa.C.S.A. § 3714(a). 
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him to the Conemaugh Memorial Medical Center’s emergency 

room [(“the hospital”)] where, as part of his treatment, a blood 

draw was performed on Schoenfeld at 11:45 p.m. 

Approximately thirty-six minutes after the blood draw at 

12:21 a.m. on May 6th, [Officer] Wyar advised Schoenfeld that he 

was under suspicion of DUI and requested that he submit to 

chemical testing of the blood draw. [Officer] Wyar read 

Schoenfeld the standard chemical test warnings on form DL-26 

and Schoenfeld consented to having his blood tested. 

Schoenfeld’s blood test results were positive for amphetamine, 

methamphetamine, diazepam, and nordiazepam. The test was 

negative for alcohol. A urine screen performed at 1:57 a.m. on 

May 6th and was positive for amphetamine and benzodiazepines.

Trial Court Opinion, 4/25/23, at 2-3. 

Schoenfeld signed a waiver of counsel form in the magisterial district 

court in September 2021. Acting pro se, and while apparently still on bail at 

the time, Schoenfeld requested continuances in October 2021 and January 

2022, and he acknowledged a previously scheduled trial date.

2

 See

Continuance Request Forms, 10/1/21 and 1/5/22, at 1 (indicating Schoenfeld 

was not in prison); Preliminary Conference Sheet, 3/2/22 at 1 (same); but 

see Preliminary Conference Sheet, 3/15/22, at 1 (indicating Schoenfeld was 

in prison). 

Schoenfeld appeared pro se for trial on July 7, 2022. During the court’s 

colloquy on Schoenfeld’s waiver of a jury trial, Schoenfeld waived his right to 

a trial by a jury. However, Schoenfeld indicated that he applied for a public 

defender, but the public defender’s office rejected his application. See N.T., 

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2 The Commonwealth also sought continuances of trial, which the court 

granted. 
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7/7/22, at 2. The trial court indicated, “[W]e went through that with your last 

trial[,]” referring to a separate criminal case (the “separate case”). Id.

3

 The 

trial court explained that in the separate case: it was determined that 

Schoenfeld’s income and assets were “well above the guidelines” for a public 

defender; there had been a delay of “months” in that case before Schoenfeld 

eventually retained counsel; and a jury had acquitted him of the “main 

charges” but found him guilty on the “the other ones.” Id. at 5-6. 

The Commonwealth conducted a colloquy of Schoenfeld concerning his 

right to counsel. See id. at 3-11. Schoenfeld maintained he should qualify 

for a public defender because he was incarcerated and had no assets or

property. See id. He further asserted that the public defender’s office 

rejected his application due to his previous application in the separate case. 

See id. at 3-4. At the conclusion of the colloquy, Schoenfeld refused to sign 

a waiver of counsel form. See id. at 10. The Commonwealth noted

Schoenfeld was “maintaining on the record that he won’t waive counsel[; but 

the c]ourt’s aware that he doesn’t qualify for a [p]ublic [d]efender.” Id. The 

Commonwealth stated it had no objection to a continuance but asserted that 

Schoenfeld was “just going to continue to attempt to sort of ham[s]tring these 

proceedings.” Id. at 10-11. The court concluded, “Let’s proceed.” Id. at 11. 

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3

It appears that in the separate case, the trial court presided over a criminal 

matter docketed in the trial court at No. 1055-202. Schoenfeld appealed the 

judgment of sentence in that case at 783 WDA 2022. See Response to Order, 

945 WDA 2022, 9/23/22, at 1; Order, 945 EDA 2022, 12/9/22, at 1. 
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The Commonwealth thereafter presented testimony from Officer Wyar.

Schoenfeld maintained any drugs in his system were given to him at the 

hospital and his medical records would establish that fact. The court granted 

Schoenfeld’s request to obtain his medical records and continued the trial. On 

July 25, 2022, the court reconvened the trial, reviewed the medical records 

on the record, heard arguments from the parties, and found Schoenfeld guilty

of the above-mentioned offenses. That same day, the court sentenced 

Schoenfeld to an aggregate term of three days to six months of imprisonment 

and fines and costs. Schoenfeld, still acting pro se, filed a motion for 

reconsideration/notice of appeal, which this Court docketed as a timely

appeal.4 

The remaining procedures in this appeal are lengthy but illuminating. In 

September 2022, this Court remanded for the trial court to clarify whether 

Schoenfeld was entitled to the appointment of counsel. See Order, 945 WDA 

2022, 9/12/22 at 1. The trial court responded that Schoenfeld was not entitled 

to appointed counsel and explained:

In this matter[,] Mr. Schoenfeld has elected to proceed pro 

se since his preliminary hearing. This decision is evidenced by his 

indication on the September 23, 2021, Notice of Arraignment 

where he indicated he was representing himself. Further, each 

record entry from continuance requests through preliminary 

conference forms indicates that he has elected to proceed pro se.

Further, the issue of Mr. Schoenfeld’s right to appointed 

counsel was addressed in [the separate case]. In that matter[,]

Mr. Schoenfeld was initially represented by private counsel who 

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4 The trial court also entered an order denying reconsideration. 
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later withdrew due to a deteriorating attorney-client relationship. 

The [p]ublic [d]efender’s [o]ffice then evaluated Mr. Schoenfeld 

to determine if he qualified for their representation and 

determined that his income and assets far exceeded the guidelines 

for the appointment of counsel. Mr. Schoenfeld then obtained new 

private counsel who represented him through trial in th[e 

separate] case.

As there has been no showing that his financial situation has 

changed, Mr. Schoenfeld is not entitled to appointed counsel in 

this matter. This [c]ourt does not appoint counsel to those who

have a demonstrated ability to hire counsel but do not do so out 

of personal choice.

Response to Order, 945 WDA 2022, 9/23/22, at 1.

This Court subsequently vacated the briefing schedule in this appeal, 

stating that “it appeared [Schoenfeld] may be entitled to counsel on his direct 

appeal.” Order, 945 WDA 2022, 12/9/22, at 1. This Court noted that in the 

separate case, the trial court had appointed appellate counsel on July 14, 

2022. See id. Therefore, we remanded for the trial court to clarify whether 

Schoenfeld was entitled to the appointment of counsel in the present appeal. 

See id. at 2. The trial court then appointed present counsel to represent 

Schoenfeld in this appeal. See Response to Order, 945 WDA 2022, 1/26/23, 

at 23. Following an additional remand for the filing of a counseled Pa.R.A.P. 

1925(b) statement and a Rule 1925(a) opinion, this appeal is now before this 

panel. 

Schoenfeld raises the following issue for our review:

The trial court erred when it found [Schoenfeld] guilty of [DUI]; 

the weight and sufficiency of the evidence presented by the 

Commonwealth did not warrant a conviction.

Schoenfeld’s Brief at 5 (some capitalization omitted).
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Before addressing this issue, however, we review the trial court’s 

decision to have Schoenfeld proceed to trial pro se. See Commonwealth v. 

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

inherent importance of the right to counsel and the right to selfrepresentation, this Court has a duty to review, sua sponte, whether a 

defendant waived his or her right to counsel knowingly, voluntarily, and 

intelligently before proceeding in every critical stage of a criminal proceeding

. . .”) (citation omitted). Our standard of review is de novo, and our scope of 

review is plenary. See Commonwealth v. McLendon, 293 A.3d 658, 666

(Pa. Super. 2023), appeal denied, --- A.3d ---, 2023 WL 8885966 (Pa. 2023). 

“The Sixth Amendment to the United States Constitution and Article I, 

§ 9 of the Pennsylvania Constitution guarantees a criminal defendant the right 

to the assistance of counsel.” Id. at 665. A deprivation of the right to counsel

can never be harmless. See Commonwealth v. Johnson, 158 A.3d 117, 

121 (Pa. Super. 2017). However, the right to counsel is not absolute: a

defendant may elect to proceed pro se if he waives his right to counsel; a

court may also require a defendant to proceed pro se if he forfeits the right to 

counsel. See Commonwealth v. Lucarelli, 971 A.2d 1173, 1179 (Pa. 

2009). Waiver is an intentional and voluntary relinquishment of a known right

to counsel; forfeiture results from the defendant’s extremely serious 

misconduct or extremely dilatory conduct. See id. 

Here, Schoenfeld appeared pro se for trial. During the colloquy on his 

right to counsel, Schoenfeld refused to waive his right to counsel, maintained 
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he should qualify for a public defender, and indicated he could not, and would 

not, retain private counsel. See N.T., 7/7/22, at 7-8. Although Schoenfeld 

previously waived his right to counsel in the magisterial district court, that 

waiver did not establish a knowing, intelligent, and voluntary relinquishment 

of his right to counsel in subsequent proceedings in the trial court. See

Johnson, 158 A.3d at 123 (noting that while Johnson signed a waiver of 

counsel form in the magisterial district court, Johnson did not waive his right 

to counsel at a suppression hearing); compare Pa.R.Crim.P. 121(B) (outlining 

the procedures for waiving the right to counsel before an issuing authority) 

with Pa.R.Crim.P. 121(C) (outlining the procedures for waiving the right to 

counsel after a preliminary hearing and before a common pleas court judge).

Thus, Schoenfeld did not waive his right to counsel, and we next consider 

whether Schoenfeld forfeited his right to counsel. See Lucarelli, 971 A.2d at 

1179.

Our case law recognizes that a defendant should not be permitted to 

unreasonably clog the machinery of justice or hamper and delay the state's 

efforts to effectively administer justice. See id. In Lucarelli, our Supreme 

Court has concluded that “where a defendant’s course of conduct 

demonstrates his or her intention not to seek representation by private 

counsel, despite having the opportunity and financial wherewithal to 

do so, a determination that the defendant be required to proceed pro se is 

mandated because that defendant has forfeited the right to counsel.” Id. at 

1179 (emphasis added). Lucarelli, for example, engaged in extremely dilatory 
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conduct in failing to retain counsel where he had more than eight months to 

prepare for trial, retained several attorneys who withdrew from

representation, and, five weeks before trial, the court reduced bail to allow 

him to retain new counsel. See id. at 1177, 1180. 

In Commonwealth v. Wentz, 421 A.2d 796, 798 (Pa. Super. 1980)

(en banc), this Court rejected Wentz’s claim that the trial court “coerced” him 

into proceeding pro se at trial. In that case, an arraignment judge informed 

Wentz that he was ineligible for “free” counsel and should obtain private 

counsel. Wentz, 421 A.2d at 798 (quotation marks omitted). Wentz then

appeared at trial without counsel and asserted only that he did not know any 

attorneys in the area. See id. The trial court, in Wentz, further observed 

that Wentz had income “between $350 and $400 every two weeks” and was 

not entitled to “free counsel.” See id. at 799.5

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5 Wentz specifically concluded that 

a criminal defendant who has been duly notified of the date of his 

trial, and who has been advised to obtain counsel to represent him 

and who, nevertheless, appears in court on the scheduled date 

without counsel and with no reasonable excuse for the lack thereof 

and no concrete plans for the obtaining of counsel has waived his 

right to counsel.

Wentz, 421 A.2d at 799. We note that of the seven judges participating in 

that decision, two judges joined the author of the lead opinion, one judge 

concurred in the result, and three judges dissented from that conclusion. 

Moreover, this Court decided Wentz before our Supreme Court’s decision in 

Lucarelli, which set forth the extremely serious misconduct or extremely 

dilatory conduct standard for forfeiture. Nevertheless, given the similarities 

between the Court’s reasoning in Wentz and the standard of forfeiture in 

(Footnote Continued Next Page)
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Following our review of the record and the case law, we cannot conclude 

that Schoenfeld forfeited his right to counsel at trial. Unlike Wentz, the record 

does not establish that the trial court considered Schoenfeld’s present ability 

to afford counsel, informed him that he did not qualify for “free” 

representation, or warned him to obtain private counsel before appearing at 

trial in the present case. Cf. Wentz, 421 A.2d at 798-99. Moreover, while 

the trial court indicated that Schoenfeld had assets “well beyond” the 

guidelines for the appointment of counsel, see N.T., 7/7/22, at 4-6, the court 

only referred to the previous separate case and apparently did not consider

Schoenfeld’s incarceration prior to trial in the present case. See id. The fact 

that the trial court, in the previous separate case, appointed Schoenfeld 

appellate counsel on July 14, 2022—i.e., after the beginning of trial in the 

present case case, but prior to its completion—contradicts the suggestion that 

Schoenfeld did not qualify for the public defender or had an ability to retain 

private counsel for trial in the present case. 

In sum, we perceive nothing concrete or substantive in the record which

supports the trial court’s assessment that Schoenfeld had the resources to 

retain private counsel or that Schoenfeld had a proper opportunity to obtain 

private counsel before facing the prospect of proceeding to trial as his own 

counsel. Without clear indications on the record that Schoenfeld knowingly, 

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Lucarelli, we discuss Wentz for the purpose of comparison to the 

circumstances in the present case.
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intelligently and voluntarily waived his right to counsel or forfeited his right to 

counsel by engaging in extremely dilatory conduct,6 we cannot overlook, or 

accept, the court’s decision to require him to proceed pro se at trial. 

Therefore, we conclude that the trial court violated Schoenfeld’s right to 

counsel. Because this violation is not subject to a harmless error analysis, we 

are compelled to vacate the judgment of sentence and remand for a new trial.

We emphasize nothing in our decision limits the trial court from conducting a 

hearing to determine Schoenfeld’s eligibility for continued representation by 

appointed counsel or Schoenfeld’s right to proceed pro se following a colloquy. 

Additionally, Schoenfeld’s conduct following remand may, in appropriate 

circumstances, and based on a more complete record, amount to an 

unreasonable attempt to delay the proceedings.

7

 

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

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6 We reiterate that the Commonwealth, at trial, did not oppose a continuance. 

See N.T., 7/7/22, at 10. Notwithstanding its assertion that Schoenfeld would 

“hamstring” the proceedings, the Commonwealth presented no evidence of 

any dilatory conduct by Schoenfeld or his ability to afford private counsel. See 

id. at 3-11. The Commonwealth noted only that the trial court was aware 

that Schoenfeld did not qualify for a public defender in the previous separate 

case. See id. at 10.

7

In light of our conclusion that the record does not support the trial court’s 

decision to require Schoenfeld to proceed pro se at trial, we will not address 

the issue raised by counsel in this appeal. 
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5/22/2024