Com. v. Lampley, M.

J-S28022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MARKESE DENASHAWN LAMPLEY :

:

Appellant : No. 693 WDA 2022

Appeal from the Judgment of Sentence Entered August 18, 2021

In the Court of Common Pleas of Erie County Criminal Division at No(s):

CP-25-CR-0000597-2020

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED: NOVEMBER 28, 2023

Appellant, Markese Denashawn Lampley, appeals from the August 18,

2021 judgment of sentence entered in the Court of Common Pleas of Erie

County that imposed an aggregate sentence of life imprisonment without the

possibility of parole to be followed by 13 to 44 years’ incarceration. We are

constrained to remand this case for an evidentiary hearing in accordance with

this memorandum.

The trial court summarized the procedural history as follows:

On April 15, 2020, the [Commonwealth] by way of information,

charged Appellant with [numerous criminal offenses under the

Crimes Code and several summary offenses under the Vehicle

Code for events occurring on January 25, 2020.] On August 7,

2020, Appellant through appointed counsel, Bruce G. Sandmeyer,

Esquire, [(“Attorney Sandmeyer”)] filed an omnibus pre[-]trial

motion seeking a change of venue, a change of venire, [] a

[]motion for dismiss[al,] and [a petition for] writ of habeas

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S28022-23

corpus.[] Appellant's motions were denied on August 31, 2020.

On November 2, 2020, Appellant privately retained Jason E. Nard,

Esquire [(“Attorney Nard”)]. On June 16, 2021, a status

conference was held to discuss the motion in limine that was filed

by Attorney Nard, on behalf of Appellant, seeking to exclude

photographs of the deceased victim, photographs taken at the

victim's autopsy, and a letter written by Appellant to [a]

magisterial district judge[.] Prior to the hearing, the

Commonwealth filed a response to [Appellant’s] motion in limine

regarding the letter to [the] magisterial district judge[.] The

[trial] court determined that the letter was admissible under

Pennsylvania Rule[] of Evidence [] 901(b)(4) and incorporated the

Commonwealth's legal arguments in its order. [On] June 17,

2021, the Commonwealth filed a motion to amend information

seeking to withdraw [several criminal charges] and also to amend

a spelling error of the last name of the deceased victim[. That

same day, the trial] court granted the Commonwealth's motion.

With the jury trial quickly approaching, on June 16, 2021, Attorney

Nard informed the [trial] court that Appellant unexpectedly

decided he wanted to proceed pro se at trial. On June 21, 2021,

[the trial] court held a Grazier[1] hearing. At the hearing, the

[trial] court provided a brief summary of the history of the case.

Attorney Nard stated he met with Appellant on Wednesday, June

16, 2021, and was informed Appellant no longer wished to retain

his services. Appellant provided the [trial] court with a "Pro Se

Notice" and requested he be addressed as [“]Mileage Galor Bey[”].

Attorney Nard stated that Appellant had been cooperative

throughout the entirety of the proceedings since [Attorney Nard]

was retained in November 2020[,] until June 16, 2021. Four []

days before the start of his trial, Appellant proclaimed himself to

be a sovereign citizen and incorrectly stated the [trial] court

lacked authority and jurisdiction over him. After an exhaustive

colloquy with Appellant, the [trial] court found that Appellant

knowingly, voluntarily, and intelligently, relinquished his right to

be represented by counsel. Appellant even stated to the [trial]

court that: "it's my choice." Once satisfied with Appellant's

waiver, the [trial] court appointed Attorney Nard to act as standby

counsel. Appellant agreed with the appointment of Attorney Nard

____________________________________________

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

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J-S28022-23

as standby counsel. The trial started with jury selection on June

24, 2021.

On July 2, 2021, after a four-day jury trial, Appellant was found

guilty of murder in the second degree[ (Count 2), 3] counts of

aggravated assault[ - serious bodily injury (Counts 3 - 5)],

robbery[ - inflicts serious bodily injury (Count 6),] possessing

instruments of crime (Count 11), 2] counts of simple

assault[ - fear of imminent serious bodily injury (Counts 13 and

14), 6] counts of recklessly endangering another person[ (Counts

15 – 18, 20 and 21) and fleeing or attempting to elude police

officer (Count 10).2] Additionally, the [trial] court found Appellant

guilty of [10] summary motor vehicle offenses.[3]

On August 18, 2021, after consideration of the pre[-]sentence

[investigation] report, 42 Pa.C.S.A. § 9721(b) regarding

rehabilitation potential, the gravity of the offense, the impact on

the community[ and] the victims, [the] need to protect the public,

and the sentencing guidelines, the [trial] court [imposed], inter

alia, a sentence of life in prison without parole and 13 to [44]

years[’ incarceration, with the aggregate term of incarceration

imposed at Counts 3 - 6, 10, 11, 13 – 18, 20, and 21 set to run

consecutively] to the sentence of life [in prison imposed] at Count

2.[4]

____________________________________________

218 Pa.C.S.A. §§ 2502(b), 2702(a)(1), 3701(a)(1)(i), 907(b), 2701(a)(3),

2705, as well as 75 Pa.C.S.A. § 3733(a), respectively.

3 The 10 summary offenses were unauthorized transfer or use of registration

(Count 22), traffic-control signals – steady red indication (Count 24), driving

on right side of roadway (Count 25), driving on roadways laned for

traffic – driving within single lane (Count 26), stop signs and yield

signs – duties at stop signs (Count 27), turning movements and required

signals (Count 28), driving vehicle at safe speed (Count 29), careless driving

(Count 30), reckless driving (Count 31), and windshield obstructions and

wipers – sun screening and other materials prohibited (Count 32). 75

Pa.C.S.A. §§ 1372(3), 3112(a)(3)(i), 3301(a), 3309(1), 3323(b), 3334(a),

3361, 3714(a), 3736(a), and 4524(e)(1), respectively.

4 On Count 2, Appellant was sentenced to life without the possibility of parole.

Count 3 merged with Count 2 for sentencing purposes. On Count 4, Appellant

was sentenced to 54 to 120 months’ incarceration with the sentence set to

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J-S28022-23

____________________________________________

run consecutively to the sentence imposed on Count 2. On Count 5, Appellant

was sentenced to 54 to 120 months’ incarceration with the sentence set to

run consecutively to the sentence imposed on Count 4. Count 6 merged with

Count 2 for sentencing purposes. On Count 10, Appellant was sentenced to 9

to 84 months’ incarceration with the sentence set to run consecutively to the

sentence imposed on Count 5. On Count 11, Appellant was sentenced to 3 to

60 months’ incarceration with the sentence set to run consecutively to the

sentence imposed on Count 10. Count 13 merged with Count 5 for sentencing

purposes. Count 14 merged with Count 4 for sentencing purposes. On Count

15, Appellant was sentenced to 6 to 24 months’ incarceration with the

sentence set to run consecutively to the sentence imposed on Count 11. On

Count 16, Appellant was sentenced to 6 to 24 months’ incarceration with the

sentence set to run consecutively to the sentence imposed on Count 15. On

Count 17, Appellant was sentenced to 6 to 24 months’ incarceration with the

sentence set to run consecutively to the sentence imposed on Count 16. On

Count 18, Appellant was sentenced to 6 to 24 months’ incarceration with the

sentence set to run consecutively to the sentence imposed on Count 17. On

Count 20, Appellant was sentenced to 6 to 24 months’ incarceration with the

sentence set to run consecutively to the sentence imposed on Count 18. On

Count 21, Appellant was sentenced to 6 to 24 months’ incarceration with the

sentence set to run consecutively to the sentence imposed on Count 20. The

trial court did not impose a term of incarceration on Counts 22 to 29 and on

Counts 31 and 32, but did impose a fine of $25.00 each on Counts 22 to 29

and on Count 32. The trial court imposed a $200.00 fine on Count 31. The

aggregate fine imposed was $400.00 Count 30 merged with Count 21 for

sentencing purposes. Appellant received credit for 303 days for time already

served. As part of his sentence, Appellant was ordered to pay the costs of

prosecution and restitution in the amount of $28,766.58.

We note that at the sentencing hearing, the trial court, in imposing its

sentence on Count 5, stated that the sentence was set to run consecutively to

the sentence imposed on Count 2. N.T., 8/18/21, at 67-68. The sentencing

order states that the sentence imposed on Count 5 is set to run consecutively

to the sentence imposed on Count 4. It is clear from a review of the

sentencing order, as well as the sentencing hearing notes of testimony, that

the trial court intended each sentence to run consecutively to the sentence

imposed on the prior count. See Sentencing Order, 8/18/21; see also N.T.,

8/18/21,at 67-70. Moreover, “[i]n Pennsylvania, the text of the sentencing

order, and not the statements a trial court makes about a defendant's

sentence, is determinative of the [trial] court's sentencing intentions and the

sentence imposed.” Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa.

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J-S28022-23

On August 30, 2021, Appellant filed a post-sentence motion

claiming that because he was a sovereign citizen[,] the [trial]

court lack[ed] jurisdiction over him, and asserted what the [trial]

court gleaned as challenges to the judgment of sentence imposed

by the [trial] court on August 18, 2021. On September 2, 2021,

the [trial] court [denied] Appellant's [post-sentence motion. In

so doing, the trial] court held that Appellant's sovereign citizen

claim was frivolous and his other claims lacked legal merit. On

September 7, 2021, Appellant filed [pro se] a "Notice Requesting

Leave to Supplement Post-Sentence Notice for New Trial" dated

September 6, 2021. Appellant alleged the Commonwealth never

filed a motion to amend the criminal information and added

additional charges, violating [Pennsylvania Rule of Criminal

Procedure] 564. The [trial] court found Appellant's claims to be

"factually inaccurate" as the Commonwealth did file a motion to

amend the information on June 17, 2021, and no new charges

were added. In fact, the Commonwealth withdrew several

charges. Consequently, Appellant's motion was denied.

On May 6, 2022, Appellant filed a "Motion to Reinstate Appellate

Rights Nunc Pro Tunc." Due to the unique facts surrounding this

case (Appellant proceeding pro se at trial and claiming sovereign

citizenship) and out of deference to Appellant, [the trial] court

granted Appellant's motion. Appellant filed his "Statement of

Matters Complained of on Appeal Pursuant to [Pennsylvania Rule

of Appellate Procedure] 1925(b)" and alleged the weight and

sufficiency of the evidence were insufficient to support the

verdicts. During this time, Appellant was proceeding pro se.

Under directive from [this Court, the trial] court held a Grazier

hearing in order to determine whether Appellant wished to

continue his appeal pro se. Appellant immediately requested to

be assisted by counsel, and [on] July 20, 2022, [the trial]

appointed Jessica A. Fiscus, Esquire [(“Attorney Fiscus”)].

____________________________________________

2013). As such, Appellant’s aggregate sentence was life without the possibility

of parole to be followed by 13 to 44 years’ incarceration.

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J-S28022-23

Trial Court Opinion, 12/15/22, at 1-5 (record citations, footnotes, original

brackets, and extraneous capitalization omitted).

Appellant raises the following issues for our review:

[1.] Did the trial court err when it permitted Appellant to proceed

pro se at the time of trial where the waiver colloquy does

not reveal that Appellant made a knowing, voluntary, and

intelligent waiver of counsel?

[2.] Did the trial court violate Appellant's federal and state

constitutional right to self-representation when it adopted a

practice of standby counsel acting as a "liaison" for

Appellant at multiple sidebars and in-chambers discussions

rather than allowing Appellant to speak for and represent

himself as, on many of these occasions, the trial court

received evidence, heard argument, [or] made decisions on

evidentiary issues [or] issues affecting Appellant's

fundamental rights as an accused person?

[3.] Is the evidence insufficient to sustain the convictions for

aggravated assault, as to Kayla Hanas and Jacelyn

Anderson, where the evidence of record, viewed in the light

most favorable to the Commonwealth, did not demonstrate

that Appellant had the specific intent to inflict serious bodily

injury on either of them?

Appellant’s Brief at 11 (extraneous capitalization omitted).5

In his first issue, Appellant asserts that his waiver of counsel was not

knowingly, voluntarily, or intelligently provided because the “trial court clearly

did not comply with the minimum, mandatory requirements of [Pennsylvania

Rule of Criminal Procedure 121]” in conducting the waiver of counsel colloquy.

Id. at 46. In particular, Appellant contends that (1) “the trial court never

____________________________________________

5 For ease of disposition, Appellant’s issues have been reorganized.

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J-S28022-23

outlined the elements of the crimes [for which he was charged] in the

colloquy” as required by Rule 121(A)(2)(b); (2) the trial court “never indicated

that Appellant had the right to have free counsel appointed if he [were]

indigent” as required by Rule 121(A)(2)(a); (3) trial court failed to advise

Appellant that he may lose many rights permanently if not timely asserted as

required by Rule 121(A)(2)(f); and (4) “the trial court did not identify with

any particularity the summary offenses charged, incorrectly stated that

[Appellant] faced ten rather than eleven [summary offenses], and did not

identify the maximum fine[s permitted] by statute” as required by Rule

121(A)(2)(b).

Because Appellant’s claims require us to interpret Rule 121 and its

colloquy requirements, these claims present a question of law for which our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Phillips, 141 A.3d 512, 518 (Pa. Super. 2016), appeal

denied, 161 A.3d 796 (Pa. 2016). It is well-established that

an accused has a constitutional right to counsel during trial. While

an accused may waive his constitutional right, such a waiver must

be the free and unconstrained choice of its maker[] and also must

be made knowingly and intelligently[.] To be a knowing and

intelligent waiver [the] defendant must be aware of both the right

and of the risks of forfeiting that right.

Commonwealth v. Tyler, 360 A.2d 617, 620 (Pa. 1976) (citations and

quotation marks omitted).

The right to counsel is guaranteed by the Sixth Amendment to the

United States Constitution and Article V, Section 9 of the

Pennsylvania Constitution. When a defendant wishes to waive the

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right to counsel, the trial court is ultimately responsible for

ensuring that the defendant is questioned about the six areas

specified in Rule 121 and for determining whether the defendant

is indeed making an informed and independent decision to waive

counsel. Specifically, it is incumbent on the [trial] court to fully

advise the accused of the nature and elements of the crime before

accepting waiver of counsel. A penetrating and comprehensive

colloquy is mandatory, regardless of the defendant's experience

with the system. Failure to conduct a thorough, on-the-record

colloquy before allowing a defendant to proceed to trial pro se

constitutes reversible error on direct appeal.

Commonwealth v. Isaac, 205 A.3d 358, 363 (Pa. Super. 2019) (citations,

footnote, original brackets, and quotation marks omitted), appeal denied, 217

A.3d 795 (Pa. 2019). The appointment of stand-by counsel does not cure a

trial court’s failure to conduct an effective waiver of counsel colloquy.

Commonwealth v. Floyd, 257 A.3d 13, 18 (Pa. Super. 2020). Waiver of a

constitutional right, such as the right to counsel, cannot be presumed from a

silent record as it is well-established that the presumption must always be

against the waiver of a constitutional right. Commonwealth v. Norman,

285 A.2d 523, 526 (Pa. 1971); see also Commonwealth v. Murphy, 214

A.3d 675, 679 (Pa. Super. 2019) (stating, “waiver cannot be presumed in a

silent record”); Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa. Super.

2017) (stating, “Courts indulge every reasonable presumption against waiver

of fundamental constitutional rights”).

Rule 121(A)(2) states in pertinent part that

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:

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J-S28022-23

(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)(a-f).

When reviewing a trial court's basic compliance with the

requirements of Rule 121, we do not first apply a “totality of the

circumstances” test. In this context, we look at the totality of the

relevant circumstances only after we decide the trial court

has met the minimum requirements of Rule 121, to

determine whether the defendant's waiver of the constitutional

right to counsel was a knowing, voluntary, and intelligent waiver.

Commonwealth v. Phillips, 93 A.3d 847, 853-854 (Pa. Super. 2014)

(citations and footnote omitted; emphasis added). The trial court must make

a “probing inquiry” into whether a defendant is knowingly, voluntarily, and

intelligently waiving his or her right to counsel. Commonwealth v. Clyburn,

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42 A.3d 296, 299 (Pa. Super. 2012); see also Commonwealth v. Houtz,

856 A.2d 119, 125 (Pa. Super. 2004) (reiterating that, a trial court must

formally and searchingly inquire into the six areas covered by Rule 121);

Isaac, 205 A.3d at 363 (stating, a “penetrating and comprehensive colloquy

is mandatory” (citation and original quotation marks omitted)). “The ‘probing

colloquy”’ standard requires Pennsylvania trial courts to make a searching and

formal inquiry into the questions of (1) whether the defendant is aware of his

right to counsel or not and (2) whether the defendant is aware of the

consequences of waiving that right or not.” Commonwealth v. Starr, 664

A.2d 1326, 1335 (Pa. 1995).

It is incumbent upon the trial court to ensure that a defendant is aware

of both the nature of his or her right to counsel and the risks and consequences

of forgoing that constitutional right before finding that a defendant knowingly,

voluntarily, and intelligently waived his or her right to counsel. Phillips, 93

A.3d at 852. In addition to the six inquiry factors enumerated in Rule 121,

the trial court must also inquire about a defendant’s age, educational

background, and basic comprehension skills in order to ensure that the

defendant possesses the ability to understand the questions posed to him or

her during the waiver colloquy. Commonwealth v. McDonough, 812 A.2d

504, 507 n.1 (Pa. 2002); see also Phillips, 93 A.3d at 853.

Regarding the Rule 121(A)(2)(b) factor – whether a defendant

understands the nature of the charges against the defendant and the elements

of each of those charges – the trial court must go beyond a mere inquiry of

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the defendant’s understanding of the offenses. Phillips, 93 A.3d at 853. In

order to satisfy Rule 121(A)(2)(b), the trial court must “fully advise the

[defendant] of the nature and elements of the crime before accepting the

waiver of counsel.” Id. (citation, original quotation marks, and original

brackets omitted); see also Clyburn, 42 A.3d at 299. The failure to fully

advise a defendant of the elements of the crime constitutes reversible error.

Phillips, 93 A.3d at 854-855 (holding that, the failure to advise a defendant

of the elements of the offenses constitutes error); see also Clyburn, 42 A.3d

at 301 (stating that, Rule 121(A)(2)(b) requires the trial court to elicit from

the defendant that he or she understands, inter alia, the elements of the

offenses); Commonwealth v. Lasko, 14 A.3d 168, 173 (Pa. Super. 2011)

(stating that, a “full [waiver] colloquy was not conducted on the record as the

trial court did not explain the elements of the crimes” but, rather, only orally

explained the charges and the possible sentencing exposure);

Commonwealth v. Floyd, 257 A.3d 13, 18 (Pa. Super. 2020) (stating that,

the waiver colloquy was deficient because the trial court did not advise the

defendant of the elements of the charged offenses); Isaac, 205 A.3d at 363

(noting that, a trial court’s failure to inform a defendant of the elements of the

charged offenses constitutes a deficient waiver colloquy); Commonwealth v.

Hood, 2022 WL 4090008, at *6 (Pa. Super. filed Sept. 7, 2022) (unpublished

memorandum) (stating, the minimum requirements of Rule 121 are not

satisfied when the trial court fails to, inter alia, ensure the defendant

understood the elements of each charge). Moreover, a signed waiver form

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containing a perfunctory statement that the defendant agreed he or she was

informed of the nature and elements of the crime but fails to list the charges

and elements of each crime, does not cure an insufficient oral colloquy.

Clyburn, 42 A.3d at 301. Strict adherence to the mandatory requirements of

Rule 121 is of import because a defendant may change his or her mind as to

self-representation based upon the disclosures made, and information gained,

during the waiver colloquy. Commonwealth v. Payson, 723 A.2d 695, 703

(Pa. Super. 1999).

During a Grazier hearing on Appellant’s pro se motion requesting

self-representation, the following pertinent dialogue occurred:

[Trial Court:] Okay. And so what I'm going to do now is to

just make sure that you know your

constitutional rights. You've referenced the

6th Amendment. And your notice has that,

but we want to make sure that you know

your rights before you give them up. It's

called a waiver of right to counsel; do you

understand that?

[Appellant:] Yes, I understand that.

[Trial Court:] Okay. And are you waiving the right to

counsel just for today's hearing or also for

the trial?

[Appellant:] Also for the trial.

[Trial Court:] Okay. So you want to represent yourself at

the trial; that's what you're saying.

[Appellant:] If we ever get to that point.

[Trial Court:] Yes. Okay. The trial starts with jury

selection on Thursday, so we'll get to that

point. Okay. So I don't - did you reference

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to Attorney Nard that you were what is called

a sovereign citizen?

[Appellant:] I'm a Moor.

[Trial Court:] A what?

[Appellant:] A Moor, indigenous to this land.

[Trial Court:] Okay. I don't recognize that, so any claim of

being indigenous to the state is rejected. We

will start trial on Thursday.

[Appellant:] Well, as of -

[Trial Court:] You need to know -

[Appellant:] I am indigenous to this land. And this [trial]

court has no authority nor jurisdiction over

me or no contract with me. And the only

ones who have a contract with me is the

federal government, which they do not have.

Can you provide the delegation of authority

order?

[Trial Court:] Okay. So I reject that argument once again.

Attorney Nard, can you -

[Appellant:] The delegation of authority –

[Trial Court:] I'm going to ask that you not interrupt me.

Here's what's going to happen if you keep

interrupting, I'm going to have you removed

from your very own hearing, but I'm going to

give you fair warning. I'm going to give you

a chance to abide by the rules in this

courtroom.

[Appellant:] I'm under the supreme laws -

[Trial Court:] If you don't want to listen to those rules, then

you're going to be removed.

[Appellant:] I'm under the supreme law -

[Trial Court:] Do you understand that?

[Appellant:] I don't recognize this court.

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[Trial Court:] Right. And I don't recognize that argument,

so it's denied. You're starting -

[Appellant:] So how do you have authority over -

[Trial Court:] Attorney Nard, can I just ask, was the first

time you heard about his sovereign citizen or

immunity or being indigenous, not subject to

the jurisdiction of this court - was the first

time you heard something like that on that

Wednesday at the Erie County jail.

[Attorney Nard:] Your Honor, it was - I was going to ask the

court's indulgence. While I'm not the

attorney as of now, perhaps because of the

relationship that I believe I have built, if I can

just speak right now to [Appellant], as per

the complaint. [Appellant] as his name is

stated.

[Trial Court:] Right. Yes.

[Attorney Nard:] Perhaps if I do that, I can explain the

procedure. And that if he answers the

questions, he'll still have the opportunity to

make the argument that he wants to make

to the court when the court's done speaking.

Perhaps that will make this process go a little

smoother and eliminate the possibility of him

being removed.

[Trial Court:] Sure. All right.

[Attorney Nard:] Would that be fair?

[Trial Court:] It would be. And if we in fact get through the

colloquy, he has expressed his knowledge of

the Constitution, as set forth in his claim for

the waiver under the 6th Amendment. So he

shows he has a grasp of that constitutional

right, but I would like to do a subsequent

colloquy to that, but I will allow you first to

interject. Go ahead.

[Attorney Nard:] Thank you, Your Honor.

[Trial Court:] Do you want a recess?

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[Attorney Nard:] Perhaps that would be best so I can explain.

[Trial Court:] Let's just take five minutes.

[Attorney Nard:] I apologize, Your Honor.

[Trial Court:] No, I think it's warranted.

(Recess taken.)

[Trial Court:] Attorney Nard.

[Attorney Nard:] Thank you, Your Honor. I did speak with my

client during this intermission. I tried to

explain the procedure to make this go a little

smoother. His concern, why he was speaking

over Your Honor, was he [was] afraid that he

would not get an opportunity to fully state his

position. I explained to him that any court

I've been in, and certainly this one, would

give him that opportunity, but there's certain

questions prior to that that need to be gone

through.

And that if he could manage to do that, then

he would have his ability to fully state his

position without being removed prior to

having that ability, which would provide for

the interest of judicial economy as well -

[Trial Court:] Well, I don't know how much more there is

to state, than his position is that he's

indigenous and not subject to the jurisdiction

of the court.

[Attorney Nard:] Your Honor, since I'm not part of this

conversation and I have advised that I don't

believe it's valid, I can't say -

[Trial Court:] Can you direct [Appellant] to come back up.

come on back up.

[Appellant:] Mileage Galor Bey.

[Trial Court:] So we're addressing – [Appellant] insists on

being addressed as Mileage [Galor] Bey, but

[Appellant’s] name by birth is Markese

Denashawn Lampley. Again, for purposes of

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this hearing and just to make sure that we

can get through it, [Appellant] come on up.

We know that you're 20 years old. How far

did you go in school?

[Appellant:] (No response.)

[Trial Court:] How far did you go in school?

[Appellant:] Not relevant.

[Trial Court:] How far did you go in school?

[Appellant:] It's not relevant.

[Trial Court:] So he fails to be responsive to the court's

questions. He fails to follow the directives.

His attorney has met with him on numerous

occasions. Do you know the charges against

you?

[Appellant:] (No response.)

[Trial Court:] Do you know the charges? You're aware that

you're charged with murder, which has a

maximum penalty of life in prison.

[Appellant:] With no authority and jurisdiction over me.

[Trial Court:] You're aware of that. Okay. Is that your

claim? But you even though you claim that

there's no jurisdiction, you at least know

what the government has said though, right?

[Appellant:] You said that. The government didn't say

that.

[Trial Court:] Okay. So -

[Attorney Nard:] Your Honor.

[Trial Court:] Yes.

[Attorney Nard:] If I may. [Appellant (Bey)], for purposes of

the court[, Appellant (Lampley)] as per the

complaint, we've had an opportunity for me

to state to you what the Commonwealth is

trying to charge you with, or as far as

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[Pennsylvania] law is concerned, has

charged you with the criminal indictment -

[Trial Court:] He's been charged.

[Attorney Nard:] Correct.

[Appellant:] (No response.)

[Trial Court:] He asked you a question. Did you hear him?

[Appellant:] I asked you a question.

[Trial Court:] No, you don't ask me questions. I'll ask you

the questions. If you don't want to be

responsive, here's how this will go, you're

not following the decorum. You can play the

silly games. I don't recognize the indigenous

statement that you've made. No court has.

There's no precedent whatsoever for your

claim. It's rejected.

[Appellant:] So it’s a violation -

[Trial Court:] So let’s make sure that we understand each

other.

[Appellant:] Your violation -

[Trial Court:] Your claim. I heard it. It's rejected. We

start this trial on Thursday. Now, do you

want to come to trial with the assistance of

counsel or not?

[Appellant:] Can you provide the delegation of authority

order?

[Trial Court:] Okay. That request is denied also. Attorney

Nard, he has set forth his claim to be pro se?

[Commonwealth counsel], I don't have the

right to counsel form. Do you have a copy of

that?

[Commonwealth:] Judge, I do not know if we do. I don't believe

so.

[Trial Court:] In the laws that you recognize, can you read

those laws –

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J-S28022-23

[Appellant:] The laws that I recognize -

[Trial Court:] - you printed. No, I'm just asking you. You

printed in English and referenced the 6th

Amendment, so now we're going to give you

the same form in English to recognize it. And

what we want to make sure is that you

understand you're charged with two

forms of murder, murder of the first

degree, murder of the second degree,

aggravated assault as a felony of the

first degree. There are three counts of

those.

Robbery, felony of the first degree.

There are three counts of those.

Firearms not to be carried without a

license, fleeing or attempting to elude

police officers, felonies - both felonies

of the third degree. Possessing

instruments of crime as misdemeanors

of the first degree. Simple assault at

Counts 12, 13 and 14, misdemeanor of

the second degree, and recklessly

endangering another person at [Counts]

15, 16, 17, 18, 19, 20, and 21 as

misdemeanors of the second degree.

Murder of the first and second degree

carries a maximum penalty of life in

prison and/or a $50,000[.00] fine. The

felonies of the first degree carry

maximum penalties of 20 years and/or

$25,000[.00] in fines. The felonies of

the third degree carry maximum

penalties of seven years and/or

$15,000[.00] in fines. And the

misdemeanors of the first degree carry

a five year maximum and/or a

$10,000[.00] in fines. And the

misdemeanor of the second degree

carries possible maximums of two years

in jail and/or $5,000[.00]. There are

ten violations of the vehicle code

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J-S28022-23

charged as summaries, which carry

fines and fees.

Attorney Nard, have you explained the

substance of these charges [to

Appellant]?

[Attorney Nard:] I have, Your Honor.

[Trial Court:] All right. And was he appropriately

responsive in understanding when he was

explained these charges? In other words, did

he interact with you regarding them?

[Attorney Nard:] He did, Your Honor.

[Trial Court:] All right. Perhaps, [Commonwealth counsel],

one suggestion would be - I'd like to know

your position about the right to counsel

waiver. If you would like to engage in this,

or if you have a suggestion, if Attorney Nard

would do it or the court.

[Commonwealth:] We do it typically, but Your Honor can do it.

I have no problem doing it though.

[Trial Court:] All right. Does [Appellant] have a copy of

one of [the right to counsel waiver forms]?

[Tipstaff:] Yes.

[Trial Court:] Okay. You have a form in front of you,

[Appellant], that states that you have a right

to be represented by counsel. Now, you've

referenced that in the 6th Amendment, so

you obviously understand that, correct?

[Appellant:] Uh-huh.

[Trial Court:] All right. And you know the nature and

elements of the charges against you as

you've had a preliminary hearing.

You've had an information, a complaint,

discussions with Attorney Sandmeyer

and Attorney Nard, and as well, I just

read the charges to you; is that correct?

[Appellant:] Uh-huh.

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J-S28022-23

[Trial Court:] Alright. And do you understand the possible

range of sentences, including what the fines

or maximum penalties could be in these

cases?

[Appellant:] Uh-huh.

[Trial Court:] All right. And do you understand the lawyer

could be more familiar with these rules of

evidence and procedures than you might be?

[Appellant:] Yes. Yes, sir, I understand that.

[Trial Court:] All right. Do you understand if you represent

yourself, you would be required to follow all

of the rules of criminal procedure and

evidence; do you understand that?

[Appellant:] Uh-huh.

[Trial Court:] Do you understand there may be defenses to

charges which counsel would be aware of; do

you understand that?

[Appellant:] Uh-huh.

[Trial Court:] Do you understand that if these defenses or

other rights are not raised at the right or

correct time, they could be permanently lost;

do you understand that?

[Appellant:] Uh-huh.

[Trial Court:] Do you understand if error or rule violations

occur and you don't object to them at the

right time, you could [lose] your right to

object to them permanently; do you

understand that?

[Appellant:] Uh-huh.

[Trial Court:] Are you voluntarily giving up your right to be

represented by a lawyer? In other words, is

that your decision?

[Appellant:] I got a question though.

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J-S28022-23

[Trial Court:] No, first answer that and then you can ask

your question. So, is it your choice not to

have Attorney Nard represent you?

[Appellant:] Yes, it's my choice.

[Trial Court:] Okay. No one forced you to do that.

[Appellant:] It's my choice.

[Trial Court:] In other words, you came to that decision by

yourself[?]

[Appellant:] By myself.

[Trial Court:] Okay. I would indicate on this form and then,

[Commonwealth counsel] - and then I'll let

you ask your question. Okay. So, hang on.

I'm just filling out the form. [Commonwealth

counsel], you can look at the form. I think

as indicated by the responses, I'll ask that

you sign for the Commonwealth.

[Commonwealth:] Number 10, Your Honor.

[Trial Court:] Okay. Let me see. I thought I asked it. I'm

sorry, I asked if he's been forced or

pressured in any way.

[Commonwealth:] Yes.

[Trial Court:] And he said, no, it's his own decision. I'm

satisfied.

[Commonwealth:] You marked it yes.

[Trial Court:] I'm sorry. I went down the form. He did

indicate no, he was not - and it was his own

decision. I guess I looked at it affirmatively.

[Commonwealth:] We do the same thing, Your Honor.

[Trial Court:] Yeah. I understand. With that being - the

record should reflect he indicated it was his

own decision. That he came to it freely and

voluntarily without the force or coercion by

any other individual; is that right?

[Appellant:] Uh-huh.

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J-S28022-23

[Trial Court:] All right. And then you can sign it. Go

ahead.

[Commonwealth:] Your Honor, just in terms of then the caption

on this.

[Trial Court:] Yes. It will be Lampley.

[Commonwealth:] Okay.

[Trial Court:] But I think it has to be, because no change

has been made in the amended information.

It still reads Commonwealth of Pennsylvania

versus Markese Denashawn Lampley, but he

can choose to sign it how he identifies

himself. Okay.

[Appellant:] Uh-huh.

[Trial Court:] And I'll let you do that.

[Appellant:] Before I sign that.

[Trial Court:] Yeah. Go ahead.

[Appellant:] Can you provide evidence of authority and

jurisdiction over me?

[Trial Court:] Okay. No. And I'm not going to, because I

don't need to. The evidence is

self-proclaiming. I reject your theory of

being indigenous and I will not entertain that,

as I see that as a frivolous argument. So

your claim is denied. If you want to reserve

that right for appeal, you can, but I'd ask that

based on everything you just told me, you

can sign that form in the name that you

identify as.

[Appellant:] All right.

[Commonwealth:] The other matter, Your Honor, while

[Appellant] is signing the form, I just want to

be clear for the record that each of

[Appellant’s] answers to the court's

questions, which followed the right to

counsel waiver, he didn't say yes or no, he

simply said uh-huh. And I want the record

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J-S28022-23

to reflect that both the court reporter and the

court recognized those as yes answers,

except for Number 10.

[Trial Court:] Which - go ahead.

[Commonwealth:] He said uh-huh when you asked, is the

decision yours.

[Trial Court:] And he said yes. I asked him, I guess, more

affirmatively than how the question actually

reads on the form. But then when asked if

anyone pressured him or coerced him, he

said no, and that's how it's filled out.

[Commonwealth:] I know the court reporters have a certain way

of typing what is a yes and what is a no and

I just wanted to – [in case] there's any

argument about that down the road.

[Trial Court:] Okay. So I'll address you, you've signed this

as Mileage Galor Bey.

[Appellant:] Yes.

[Trial Court:] All right. And the answers of uh-huh meant

yes, correct?

[Appellant:] Correct.

[Trial Court:] All right. Okay. I've signed this. I'll make

that part of the record. With that being

acknowledged, Attorney Nard, I am going to

require that you be standby counsel. And I

know you were privately retained; however,

we will ensure that the county contract be

also satisfied as it pertains to your

retainment.

N.T., 6/21/21, at 15-31 (extraneous capitalization omitted; emphasis added).

As part of the colloquy, Appellant executed a right to counsel waiver

form in which he answered affirmatively (“yes”) to the following questions:

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J-S28022-23

1. Do you understand you have a right to be represented by an

attorney, and a right to a free attorney if you can’t afford one and

you meet the eligibility requirements of the Erie County Public

Defender’s Office?

2. Do you know the nature and the elements of the charges

against you?

3. Are you aware of the possible range of sentences, including

fines and the maximum possible penalty that can be imposed, if

you are found guilty or plead guilty?

4. Do you understand that if you represent yourself, you will still

be required to follow all the rules of criminal procedure and

evidence?

5. Do you understand that an attorney will be more familiar with

these Rules than you?

6. Do you understand there may be defenses to these charges

which counsel would be aware of?

7. Do you understand that if these defenses or other rights are

not raised at the right time, they may be permanently lost?

8. Do you understand if errors or rule violations occur and you

don't object to them at the right time you will lose your right to

object permanently?

9. Are you voluntarily giving up your right to be represented by

an attorney?

Right to Counsel Waiver Form, 6/21/21. To the question – “Have you been

forced or pressured in any way, or have promises been made to you that have

influenced your decision to waive your right to be represented by an

attorney” – Appellant answered “no.” Id.

In addressing Appellant’s waiver of counsel claim, the trial court stated

that it “ensured Appellant was aware of his charges by reviewing the amended

information, and the maximum penalties Appellant was facing with each

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J-S28022-23

count.” Trial Court Opinion, 12/15/22, at 12, citing N.T., 6/21/21, at 23-24.

In support of its position that Appellant was made aware of the charges and

the maximum potential penalties, the trial court relied upon the executed

waiver form, as well as Appellant’s affirmative answer to the trial court’s

inquiry – “And you know the nature of the elements of the charges against

you as you’ve had a preliminary hearing. You’ve had an information, a

complaint, discussions with Attorney Sandmeyer and Attorney Nard, and as

well, I just read the charges to you; is that correct?” Trial Court Opinion,

12/15/22, at 12-13. The trial court explained that it conducted a valid waiver

colloquy pursuant to Rule 121 and that the totality of the circumstances

demonstrates that Appellant knowingly, voluntarily, and intelligently waived

his right to counsel. Id. at 16.

Appellant was charged with 21 criminal offenses under the Crimes Code

and 11 summary offenses under the Vehicle Code. See Amended Information,

6/17/21. The trial court informed Appellant of the 21 offenses for which he

was charged under the Crimes Code.6 N.T., 6/21/21, at 23. The trial court

____________________________________________

6 The trial court misspoke when it indicated to Appellant that he had been

charged with only 10 summary offenses under the Vehicle Code when, in fact,

Appellant had been charged with 11 summary offenses. N.T., 6/21/21, at 24

(stating, “[t]here are ten violations of the [V]ehicle [C]ode charged as

summaries” (emphasis added)).

When a defendant has been charged with summary offenses, neither the

United States Constitution not the Pennsylvania Constitution guarantees the

defendant an absolute right to counsel. Commonwealth v. Smith, 868 A.2d

1253, 1256 (Pa. Super. 2005), appeal denied, 877 A.2d 462 (Pa. 2005).

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J-S28022-23

then proceeded to explain the potential penalties Appellant faced if convicted.7

Id. at 23-24. The trial court did not, however, orally advise Appellant of the

elements of each offense that the Commonwealth must prove beyond a

reasonable doubt to convict Appellant of the various offenses under the Crimes

Code. Instead, the trial court asked Attorney Nard whether he “explained the

substance of these charges” to Appellant, to which Attorney Nard replied

affirmatively. It is unclear, based upon the record, what was meant by the

term “substance” as it related to the charges.

____________________________________________

Rather, “[t]he right to counsel in summary cases attaches only to those

defendants who are unable to employ counsel when there is a likelihood

that imprisonment will be imposed.” Smith, 868 A.2d at 1256 (citation

and original quotation marks omitted; emphasis in original). When the only

sentence provided for in a summary offense violation is a fine and costs, a

defendant does not have a right to counsel. Id. Ergo, if no right to counsel

has attached, the trial court does not need to conduct a waiver of counsel

colloquy before permitting a defendant to proceed pro se in defending against

the summary offenses.

Here, the trial court indicated that Appellant’s 11 summary charges were

punishable by fines and costs. Therefore, Appellant had no right to counsel in

defending against those charges. As such, Appellant’s challenge to the trial

court’s failure to satisfy the colloquy requirements of Rule 121 with regard to

the summary offenses is without merit.

7 The trial court identified the potential penalties according to the classification

of the felony or misdemeanor, i.e. felonies of the first degree carry a maximum

penalty of 20 years’ incarceration and a $25,000.00 fine and misdemeanors

of the first degree carry a maximum penalty of 5 years’ incarceration and a

$10,000.00 fine, rather than identifying the potential penalty Appellant faced

with each offense, i.e., a conviction for robbery carries a maximum penalty of

20 years’ incarceration and a $25,000.00 fine and a conviction of possessing

instruments of crime carries a maximum penalty of 5 years’ incarceration and

a $10,000.00 fine.

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J-S28022-23

Based upon the record before us, it is unclear whether the trial court

conducted a waiver colloquy in accordance with Rule 121. In particular, we

are unable to discern, based upon this record, whether Appellant was

appropriately and sufficiently advised of the elements of each crime. See

Phillips, 93 A.3d at 853; see also Clyburn, 42 A.3d at 299; Lasko, 14 A.3d

at 173; Floyd, 257 A.3d at 18; Isaac, 205 A.3d at 363; Hood, 2022 WL

4090008, at *6. In order to comply with the mandate of Rule 121(A)(2)(b),

the record must demonstrate that the elements of the crimes were explained

to the defendant and that there is support for a trial court’s determination that

the defendant understood the elements of the crimes and knowingly,

voluntarily, and intelligently waived his or her right to counsel. As the case

sub judice contains ambiguity as to whether the elements of the crimes were

explained to Appellant and whether Appellant understood that explanation, we

are constrained to remand this case to the trial court to conduct an evidentiary

hearing to determine what, if anything, was explained by Attorney Nard to

Appellant regarding the elements of the crimes. In other words, the trial court

shall determine what Attorney Nard meant when he stated he “explained the

substance of the case” to Appellant. The trial court shall conduct an

evidentiary hearing and return the certified record to this Court within 60 days

of the date of this memorandum.

Moreover, the trial court indicated that Appellant may have been

informed of the elements of the charges during, inter alia, the preliminary

hearing. The record reveals that the trial court granted Appellant’s request to

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J-S28022-23

have a transcript of the preliminary hearing produced. See Trial Court Order,

2/28/20, see also Trial Court Order, 4/23/20. A copy of the preliminary

hearing transcript, however, is not contained in the certified record presently

before this Court. Upon remand, the trial court shall obtain and file a copy of

the preliminary hearing transcript, and the transcript shall be forwarded to

this Court as part of the certified record.

Case remanded. Jurisdiction retained.

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