Com. v. Isaac, P. , 205 A.3d 358 ( 2019 )


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  • J-S55030-18
    
    2019 PA Super 59
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    Appellee
    v.
    PRINCE ISAAC
    Appellant                  No. 389 EDA 2018
    Appeal from the PCRA Order Entered December 21, 2017
    In the Court of Common Pleas of Chester County
    Criminal Division at No: CP-15-CR-0002120-2007
    BEFORE: OLSON, STABILE, JJ., and FORD ELLIOTT, P.J.E.
    OPINION BY STABILE, J.:                            FILED FEBRUARY 26, 2019
    Appellant, Prince Isaac, appeals from the December 21, 2017 order
    denying relief pursuant to the Post Conviction Relief Act (“PCRA”), 42
    Pa.C.S.A. §§ 9541-46. We affirm.
    Appellant represented himself at trial after a defective waiver-of-counsel
    colloquy—the trial court never apprised Appellant of the elements of the
    charged offenses.1 Appointed direct appeal counsel did not raise this issue.
    On collateral review, Appellant claimed direct appeal counsel rendered
    ____________________________________________
    1  “To ensure that the defendant’s waiver of the right to counsel is knowing,
    voluntary, and intelligent, the judge […] shall elicit […] that the defendant
    understands the nature of the charges against the defendant and the elements
    of each of those charges[.]” Pa.R.Crim.P. 121(A)(2)(b).
    J-S55030-18
    ineffective assistance. The PCRA court originally denied relief, but a three-
    judge panel of this Court reversed, concluding that the defective waiver
    colloquy was an issue of arguable merit.2 We remanded to the PCRA court for
    an assessment of counsel’s strategy and the prejudice, if any, to Appellant.
    The PCRA court once again denied relief, and this timely appeal followed.
    The prior panel quoted the underlying facts:
    [Appellant] and his brother and co-conspirator, Shamek
    Hynson [(Hynson)], had a powerful motive to kill the victim, Omar
    Reid [(the victim)], on October 18, 2004. The murder was an act
    of retaliation against [the victim] for an incident involving another
    one of their brothers—Ramek Neal—that took place nearly one
    year earlier. On November 5, 2003, at approximately 10:30 p.m.,
    Neal and another individual broke into [the victim’s] apartment at
    416 Victoria Drive, in the Regency Park complex located in
    Coatesville, Chester County, Pennsylvania. Neal brandished a
    pistol while demanding [the victim’s] property. [The victim]
    fought back and in self-defense shot Neal, leaving Neal paralyzed
    from the neck down. This November 2003 incident was the
    subject of subsequent family meetings attended by both
    [Appellant] and Hynson.
    On October 18, 2004, at approximately 11:00 p.m.,
    [Appellant] drove Hynson to [the victim’s] apartment at 416
    Victoria Drive in a Kia automobile that had been taken from a
    couple in Lancaster, Pennsylvania, to be used in the murder.
    Hynson got out of the Kia and knocked on [the victim]’s front door.
    As [the victim] opened the door, Hynson asked, “Are you Omar?”
    and then shot [the victim] six times. Shell casings were ejected
    from Hynson’s pistol and left at the murder scene. [The victim]
    collapsed and died on top of his five-year-old son, who had been
    on the living room floor near the front door. After the shooting,
    [Appellant] gestured to Hynson, from inside the Kia, to “hurry up.”
    This was observed by a witness looking out the window of her
    ____________________________________________
    2 We affirmed the PCRA court’s denial of relief on Appellant’s remaining issues,
    and our Supreme Court denied allowance of appeal. Direct appeal counsel’s
    handling of the waiver colloquy is the sole remaining issue.
    -2-
    J-S55030-18
    apartment. Hynson ran to the Kia, which was waiting for him with
    the front passenger’s door open. After Hynson got into the Kia,
    he closed the door, and [Appellant] sped away from the scene.
    A police officer happened to be driving into the Regency Park
    complex when a 911 dispatcher advised him of the shooting. The
    officer spotted the Kia and gave chase. During the chase, the
    murder weapon—a Hi-Point .380—was thrown from the car into
    the brush next to a railroad track. Due to the wet roadway,
    [Appellant] lost control and crashed the Kia into a ditch.
    [Appellant] and Hynson fled in different directions, and neither
    was apprehended by police at that time.
    Other individuals in [Appellant’s] Buick Riviera (another
    getaway vehicle) had been waiting, as planned, near the Regency
    Park complex and observed the police chasing the Kia to the
    location in Coatesville where [Appellant] had earlier switched from
    driving his own car, the Buick, and begun driving the Kia. They
    picked up Hynson, and Hynson told them that he had “just shot a
    man,” that he and [Appellant] were being chased, and that
    [Appellant] was still running from the police. Hynson and others
    then drove around Coatesville looking for [Appellant] and trying
    to find the gun that had been “tossed” during the getaway chase.
    Neither [Appellant] nor the gun was located, so they visited
    Ramek Neal to advise him of what happened and then returned to
    Lancaster. [Appellant] also made his way back to Lancaster.
    When he arrived, he was wet, he had a gash on his head, and his
    clothing was ripped. [Appellant] told his friends that, while being
    chased by the police, he had crashed the Kia and then had to run
    on foot.
    [Appellant’s] fingerprints were found on the interior driver’s
    door window of the crashed Kia. DNA testing confirmed the
    presence of Hynson’s blood on the interior passenger’s side of the
    Kia. Gunshot residue was also found inside the Kia. The murder
    weapon was found almost a year later by a woman walking her
    dog near the railroad tracks along [Appellant’s] escape route.
    That weapon was traced back to a straw purchase in North
    Carolina made by Tolanda Williams, the mother of Hynson’s child.
    Williams testified that during the week before the murder, she
    went with [Appellant] and Hynson to several pawn and gun shops
    in [Appellant’s] Buick, to be the straw purchaser of guns. The tag
    number of [Appellant’s] Buick was written down by one of the
    shop owners who became suspicious of one of the transactions.
    -3-
    J-S55030-18
    During cross-examination, the gun shop owner identified
    [Appellant] as the driver of the Buick. The Hi-Point .380 murder
    weapon was also used by Hynson to shoot Edward Cameron in
    Lancaster at approximately 4:30 p.m. on October 18, 2004—less
    than seven hours before [the victim] was murdered in Coatesville.
    Shell casings from the two shootings were all matched to the Hi-
    Point .380 found along the escape route. Cell phone records
    indicated that [Appellant’s] cell phone was active and used in the
    Coatesville area during and after the time of the murder.
    Isaac, 
    2016 WL 5210891
    , at *1–2. At the conclusion of a six-day trial, the
    jury found Appellant guilty of first-degree murder and conspiracy. On July 8,
    2009, the trial court sentenced Appellant to life in prison. This Court affirmed
    the judgment of sentence on direct appeal, and our Supreme Court denied
    allowance of appeal on August 12, 2012. Appellant filed this timely first PCRA
    petition on November 12, 2013.3
    Presently, Appellant argues the PCRA court erred because counsel had
    no reasonable strategic basis for failing to raise the inadequate waiver colloquy
    on direct appeal, and because Appellant would have received a new trial had
    counsel challenged the defective waiver colloquy. Appellant’s Brief at 4.
    In PCRA appeals, our scope of review is limited to the
    findings of the PCRA court and the evidence on the record of the
    PCRA court’s hearing, viewed in the light most favorable to the
    prevailing party. Because most PCRA appeals involve questions
    of fact and law, we employ a mixed standard of review. We defer
    to the PCRA court’s factual findings and credibility determinations
    supported by the record. In contrast, we review the PCRA court’s
    legal conclusions de novo.
    ____________________________________________
    3 Pursuant to 42 Pa.C.S.A. § 9545(b)(1) and SUP CT. R. 13, the timeliness
    deadline was November 13, 2013.
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    J-S55030-18
    Commonwealth v. Reyes-Rodriguez, 
    111 A.3d 775
    , 779 (Pa. Super. 2015)
    (en banc). Counsel is presumed effective, and a PCRA petitioner asserting
    otherwise bears the burden of proof.             Id. at 779-80.   Specifically, the
    petitioner must prove by a preponderance of the evidence that (1) the
    underlying claim is of arguable merit; (2) counsel had no reasonable strategic
    basis in support of the action or inaction; and (3) the petitioner suffered
    prejudice, i.e., the outcome of the proceeding in question would have been
    different but for counsel’s error. Id. at 780. A petitioner’s failure to prove
    any one of these three prongs is fatal to the claim. Id.
    The right to counsel is guaranteed by the Sixth Amendment to the
    United States Constitution and Article V, Section 9 of the Pennsylvania
    Constitution.    Commonwealth v. Clyburn, 
    42 A.3d 296
    , 298 (Pa. Super.
    2012).4 When a defendant wishes to waive the 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.”     Commonwealth v. Davido, 
    868 A.2d 431
    , 437 (Pa. 2005)
    (quoting Commonwealth v. McDonough, 
    812 A.2d 504
    , 508 (Pa. 2002)),
    cert. denied, 
    546 U.S. 1020
     (2005). Specifically, “it is incumbent on the
    ____________________________________________
    4 This Court decided Clyburn two days before our affirmance of Appellant’s
    judgment of sentence on direct appeal. Thus, it was not available to appellate
    counsel when she filed her Pa.R.A.P. 1925(b). Nonetheless, Clyburn relied
    on precedents.
    -5-
    J-S55030-18
    court to fully advise the accused [of the nature and elements of the crime]
    before accepting waiver of counsel.”    Clyburn, 
    42 A.3d at 299
     (quoting
    Commonwealth ex rel. Clinger v. Russell, 
    213 A.2d 100
    , 102 (Pa. Super.
    1965)) (brackets added in Clyburn).       A “penetrating and comprehensive
    colloquy” is mandatory, regardless of the defendant’s experience with the
    system. Id. at 300 (quoting Commonwealth v. Owens, 
    750 A.2d 872
    , 876
    (Pa. Super. 2000)). “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. 
    Id.
    A defendant also has a constitutional right to self-representation.
    Clyburn, 
    42 A.3d at 298
    ; United States v. Isaac, 
    655 F.3d 148
    , 153 (3d
    Cir. 2011), cert. denied, 
    566 U.S. 1029
     (2012).      This right prevents the
    Commonwealth from bringing a defendant into court and forcing a lawyer on
    him. Commonwealth v. Starr, 
    664 A.2d 1326
    , 1334-35 (1995). In other
    words, the right to counsel is intended as “an aid to a wiling defendant—not
    an organ of the State interposed between an unwilling defendant and his right
    to defend himself personally.” Commonwealth v. Tejada, 
    188 A.3d 1288
    ,
    1295 (Pa. Super. 2018) (quoting Faretta v. California, 
    422 U.S. 806
    , 820
    (1975)).
    We now turn to the facts of this case. The remand record reveals that
    Appellant was uncooperative during two separate waiver colloquies. At the
    first one, on September 18, 2008, Appellant repeatedly refused to answer the
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    J-S55030-18
    trial court’s colloquy questions because he believed the court lacked
    jurisdiction over him.     N.T. Hearing, 9/18/2008, at 15-22.         Appellant’s
    uncooperative behavior led the trial court to have him gagged. Id. at 27.
    Eventually, the gag was removed and the trial court attempted a colloquy.
    Appellant stated that he did not know the elements of criminal homicide, and
    that he was unable to list the elements of the charged offenses. Id. at 43,
    56. The trial court did not explain the elements to Appellant. Ultimately, the
    court denied Appellant’s request to represent himself based on Appellant’s
    insufficient understanding of the law. Id. at 59-62.
    At the second hearing, on October 2, 2008, Appellant repeatedly
    referred to an “affidavit of specific negative averment” that he apparently
    attempted to file and serve on the trial court, among others. N.T. Hearing,
    10/2/2008, at 6-8.       Appellant apparently believed that the trial court’s
    “default” in failing to respond to his affidavit rendered the criminal proceedings
    against him invalid. Id. at 10. Despite Appellant’s failure to cooperate with
    a waiver colloquy the trial court granted Appellant’s request to represent
    himself. Id. at 29. The court noted that Appellant’s stated, at the September
    18, 2008 hearing, that he did not understand the elements of the charged
    offenses. Id. at 31. Even so, the court did not describe the elements of the
    charged offenses to Appellant.
    At the May 5, 2017 PCRA hearing ordered by the previous panel of this
    Court, direct appellate counsel, Brenda Jones, testified that her appointment
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    began in 2007. N.T. Hearing, 5/2/17, at 10. Another appointed attorney was
    first chair, and Jones was to serve as death penalty counsel.      Id.    Jones
    remembered the waiver colloquies as contentious. Id. at 12. Jones testified
    that Appellant was adamant about his decision to represent himself:
    [THE COURT:]        On the basis of your knowledge of
    [Appellant] and at the time of the second hearing, on his waiver
    of counsel, do you believe that if I as the trial judge had
    specifically outlined each and every element of each and every
    charge against him, that he would have under those
    circumstances changed his mind about wanting to represent
    himself?
    [JONES]: Your Honor, no. I always thought that he wanted
    to represent himself, Judge. I never thought—I would say, this is
    my opinion, that it wouldn’t have made any difference.
    THE COURT: Okay. When you were observing him during
    the course of the, at least the second hearing on self-
    representation, when combined with the first hearing on self-
    representation, how adamant was he on a scale of one to ten, ten
    being the highest and most adamant, about representing himself?
    [JONES]: Your Honor, I would say he was a ten.
    Id. at 20.
    Procedurally, Jones was appointed to represent Appellant after he filed
    a pro se notice of appeal and a pro se Pa.R.A.P. 1925(b) statement. Id. at
    18.   Jones filed a motion for an extension of time to file a supplemental
    statement, pending completion of transcripts. Id. The trial court granted one
    such motion, but did not grant a second extension while Jones was still
    awaiting several transcripts, including the waiver colloquy transcripts. Id. at
    18, 25, 28. In any event, Jones testified that she recalled from her presence
    at the September 18 and October 2, 2007 hearings that Appellant was not
    -8-
    J-S55030-18
    aware of the elements of the charged offenses. Id. at 30. On appeal, Jones
    challenged Appellant’s competency to represent himself, rather than the
    validity of the colloquy. Id. at 32-33. She believed his nonresponsive answers
    to the trial court’s questions and his concern with matters irrelevant to his
    defense called his competency into question. Id. at 33. This Court found the
    competency issue waived for lack of an objection at trial. Commonwealth
    v. Isaac, 
    46 A.3d 830
     (Pa. Super. 2012) (unpublished memorandum, at 10);
    appeal denied, 
    50 A.3d 125
     (Pa. 2012). We also noted that Appellant did
    not specifically challenge the validity of the waiver colloquy.      
    Id.
       For this
    reason, the previous collateral review panel of this Court concluded Appellant
    has not previously litigated the issue before us.          See Isaac, 
    2016 WL 5210891
    , unpublished memorandum at *3-4.
    The PCRA court found that the record was unclear as to counsel’s
    strategic basis for not challenging the waiver colloquy.5 The PCRA court found
    Appellant’s failure to prove prejudice dispositive. PCRA Opinion, 12/21/2017,
    at 3.   Ultimately, we agree.        Therefore, we will focus our analysis on this
    element.
    In Commonwealth v. Pou, ___ A.3d ____, 
    2018 WL 4925254
     (Pa.
    Super. October 11, 2018), this Court considered circumstances similar to the
    ____________________________________________
    5 The PCRA court did not make any finding on counsel’s strategy, noting only
    that “[t]he testimony offered by appellate counsel at the hearing of May 2,
    2017 did not conclusively answer this question.       PCRA Court Opinion,
    12/21/17, at 3.
    -9-
    J-S55030-18
    instant case—the appellant waived his right to counsel at trial after a defective
    colloquy and appointed direct appeal counsel failed to raise the issue. In Pou,
    the trial court failed to apprise the appellant of the applicable statutory
    maximum sentences or inquire into his age, educational background, and
    ability to comprehend the proceedings. Id. at *1-2. There, as here, a panel
    of this Court found the issue to be of arguable merit and remanded for further
    proceedings after the PCRA court denied relief without a hearing. Id. *2. On
    remand, the PCRA court found that counsel had a reasonable strategic basis
    for choosing not to raise the issue, but this Court rejected that argument on
    appeal. Id. at *3. Instead, we concluded the petitioner failed to demonstrate
    prejudice even though the petitioner would have received a new trial had
    counsel challenged the Rule 121 colloquy on direct appeal. Id. at *4. “The
    failure to raise that claim was doubtlessly prejudicial, but as we shall explain
    it does not rise to the level of Pierce prejudice.” Id. The reference is to
    Commonwealth v. Pierce, 
    527 A.2d 973
     (Pa. 1987), wherein the
    Pennsylvania    Supreme    Court    articulated   the   three-prong   ineffective
    assistance of counsel analysis, in accord with the United States Supreme
    Court’s opinion in Strickland v. Washington, 
    466 U.S. 668
     (1984). As set
    forth above, a PCRA petitioner must normally plead and prove that counsel’s
    error was prejudicial within the meaning of Pierce. In limited circumstances,
    pursuant to United States v. Cronic, 
    466 U.S. 648
     (1984), prejudice can be
    presumed on collateral review.
    - 10 -
    J-S55030-18
    The Pou Court relied on Weaver v. Massachusetts, 
    137 S.Ct. 1899
    (2017), in which the United States Supreme Court explained that an error that
    would invalidate a conviction on direct appeal need not necessarily do so on
    collateral review. In Weaver, the defendant argued that trial counsel was
    ineffective for failing to object to the trial court’s order closing the courtroom
    to the public. Id. at 1905-06. Had counsel raised the issue on direct appeal,
    the defendant would have received a new trial.        Id.   On collateral review,
    however, the Weaver Court held that the petitioner failed to demonstrate
    prejudice:
    As explained above, not every public-trial violation will in
    fact lead to a fundamentally unfair trial. Nor can it be said that
    the failure to object to a public-trial violation always deprives the
    defendant of a reasonable probability of a different outcome.
    Thus, when a defendant raises a public-trial violation via an
    ineffective-assistance-of-counsel claim, Strickland prejudice is
    not shown automatically. Instead, the burden is on the defendant
    to show either a reasonable probability of a different outcome in
    his or her case or, as the Court has assumed for these purposes,
    […] to show that the particular public-trial violation was so serious
    as to render his or her trial fundamentally unfair.
    Id. at 1911 (internal citations omitted).
    Consistent with Weaver, the Pennsylvania Supreme Court has held on
    several occasions that the absence of harmless error for purposes of direct
    appeal does not equate to presumed prejudice on collateral review.             In
    Commonwealth v. Reaves, 
    923 A.2d 1119
     (Pa. 2007), the trial court failed
    to comply with Rule 708(C)(2) of the Rules of Criminal Procedure, which
    requires the trial court to state on the record its reasons for the sentence it
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    imposes after a violation of probation (“VOP”).    Id. at 1129; Pa.R.Crim.P.
    708(C)(2). The Supreme Court noted that, “in a direct review context, Rule
    708 operates in a fashion which is not unlike Cronic; prejudice (or rather the
    absence of harmless error) will be presumed from the failure to comply.” Id.
    at 1129-30.
    Once a Rule 708 procedural complaint has been waived,
    however, and a derivative claim is raised under the guise of
    ineffective assistance of counsel, there is no reason to presume
    Sixth Amendment, Strickland prejudice from the VOP court’s
    unobjected-to failure to comply with Rule 708. Derivative claims
    of ineffective assistance of counsel are analytically distinct from
    the defaulted direct review claims that were (or could have been)
    raised on direct appeal. Commonwealth v. Collins, 
    585 Pa. 45
    ,
    
    888 A.2d 564
    , 572–73 (2005). As noted, Strickland requires a
    showing of actual prejudice, not the presumed prejudice arising
    from Cronic, nor the harmless error standard that governs
    ordinary claims of trial court error on direct review, nor the
    presumption of harm arising on direct review of Rule 708 claims.
    This Court has long recognized the distinction between Strickland
    prejudice and the harmless error standard applicable in the direct
    review context, and this distinction can be outcome-
    determinative.
    Id. at 1130.
    Likewise, in Commonwealth v. Mallory, 
    941 A.2d 686
     (Pa. 2008),
    cert. denied, 
    555 U.S. 884
     (2008), our Supreme Court refused to presume
    prejudice where the trial court failed to conduct an oral colloquy before
    permitting the defendants to waive their right to a jury trial pursuant to
    Pa.R.Crim.P. 620. The Mallory Court also explained the distinction between
    a waiver colloquy and the underlying right. “A waiver colloquy is a procedural
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    device; it is not a constitutional end or a constitutional ‘right.’” Id. at 697.
    Further,
    “[A]n on-the-record colloquy is a useful procedural tool
    whenever the waiver of any significant right is at issue,
    constitutional or otherwise, e.g. waiver of a trial, waiver of the
    right to counsel, waiver of the right to call witnesses, waiver of
    the right to cross-examine witnesses, waiver of rules-based
    speedy trial time limits, etc. But the colloquy does not share
    the same status as the right itself.
    Id. (emphasis added).
    The Supreme Court reasoned that a constitutional, structural error
    creating presumed prejudice under Cronic would have occurred if, for
    example, a timely jury trial demand was wrongly denied.            Id. at 697.
    Counsel’s effectiveness during a waiver colloquy, on the other hand, is “far
    removed” from a structural constitutional error.    Id.   On collateral review,
    therefore, when the issue is counsel’s effectiveness, a “presumptively-valid
    waiver […] must be analyzed like any other ineffectiveness claim.” Id. at 698.
    That is, the prejudice analysis must encompass the “totality of relevant
    circumstances.” Id. In the context of a jury trial waiver, those circumstances
    could include “the defendant’s knowledge of and experience with jury trials,
    his explicit written waiver (if any), and the content of relevant off-the-record
    instructions counsel had with his client.” Id. The defendant must show that
    his understanding of the jury waiver was impaired by counsel’s performance,
    and that he would have elected a jury but for counsel’s performance. Id. at
    702.
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    J-S55030-18
    Later, in Commonwealth v. Spotz, 
    18 A.3d 244
     (Pa. 2011), the PCRA
    petitioner challenged counsel’s failure to object to a defective waiver of
    counsel colloquy. The Supreme Court held that, “[t]o establish prejudice, the
    petitioner must demonstrate a reasonable probability that but for counsel’s
    ineffectiveness, he would not have waived the right at issue.” Id. at 263-64.
    We now turn back to Pou, which, like the instant matter, concerned
    appellate counsel’s failure to raise a defective waiver colloquy on direct appeal.
    We acknowledged there was “no doubt” the petitioner would have received a
    new trial had counsel raised the issue on direct appeal. Id. at *6. Consistent
    with Weaver and our State Supreme Court precedents, however, we
    concluded the technical deficiency under Rule 121 was not sufficient, in and
    of itself, to establish prejudice on collateral review. Id. at 7-8. That is, the
    trial court’s failure to comply with the technicalities of a rule does not amount
    to a structural error warranting presumed prejudice. Id. The United States
    Constitution requires that a defendant “be made aware of the dangers and
    disadvantages of self-representation, so that the record will establish that ‘he
    knows what he is doing and his choice is made with eyes open.’” Id. at *9
    (quoting Faretta, 
    422 U.S. at 835
    ). Therefore, “Rule 121 goes farther than
    what the United States Constitution requires” and “a technically-deficient
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    J-S55030-18
    waiver of counsel colloquy is not the same as a constitutionally deficient
    waiver of counsel.” Id.6
    Instantly, Appellant relies on case law governing direct review. Without
    expressly acknowledging it, he presents this case as one involving structural
    error and presumed prejudice pursuant to Cronic. Specifically, Appellant’s
    reliance on Clyburn is misplaced. There, the trial court failed to inform the
    defendant of the charges against him and the elements of each of those
    charges.     Clyburn, 
    42 A.3d at 301
    .              This Court therefore found itself
    “constrained” to hold that the defendant’s waiver of counsel was invalid, and
    that “the failure to explain the elements of the charged crimes requires us to
    vacate the judgment of sentence.” 
    Id.
     (citing Commonwealth v. Houtz,
    
    856 A.2d 119
    , 130 (Pa. Super. 2004)). As Clyburn was decided on direct
    appeal, it is inapposite.
    As was the case in Pou, Appellant fails to distinguish between a
    technically deficient waiver colloquy and a constitutionally deficient waiver
    ____________________________________________
    6  We observe that, in Commonwealth v. Meehan, 
    628 A.2d 1151
     (Pa.
    Super. 1993), appeal denied, 
    649 A.2d 670
     (Pa. 1994), this Court held that,
    on collateral review, the PCRA court need not conduct a full colloquy before
    permitting the petitioner to waive counsel, as several of the mandatory
    inquiries are inapplicable on collateral review (Meehan was decided under
    Rule 318, the predecessor to current Rule 121). The Meehan Court noted
    the petitioner’s failure to assert “that he would not have waived his right to
    counsel if more specific inquiry had been made into the relevant areas.” Id.
    at 1159. Meehan is not directly applicable here because it governs a
    petitioner’s statutory right to counsel on collateral review.
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    J-S55030-18
    colloquy, and he does not argue that the instant case presents an example of
    the latter.
    The deprivation of the colloquy, as we have already explained, does not
    share the same status as the deprivation of the right itself. Mallory, 941 A.2d
    at 697. Under Mallory, a structural error would have occurred here if, for
    example, Appellant demanded and was refused counsel. In fact, Appellant
    had two appointed lawyers representing him when he insisted on his right to
    self-representation and failed to cooperate with the trial court’s Rule 121
    colloquy.7
    ____________________________________________
    7   Regarding Appellant’s behavior at the colloquies, the PCRA court cited
    Commonwealth v. Bastone, 
    467 A.2d 1339
     (Pa. Super. 1983), in which the
    defendant was unrepresented by counsel at his preliminary hearing. This
    Court considered former Rule 318(b), which required a knowing, intelligent,
    and voluntary waiver before a defendant proceed without counsel at a
    preliminary hearing. The trial court attempted to conduct a waiver colloquy,
    but the defendant refused to answer questions, refused to sign a written
    colloquy, and eventually turned his back to the judge. This Court wrote:
    We believe that appellant’s contemptuous behavior
    constituted a knowing, voluntary and intelligent waiver of counsel.
    To require a written waiver in a case such as this could create a
    ‘Catch-22’ situation in that a ‘court-wise’ criminal defendant could
    continually appear in court without counsel on the date scheduled
    for his trial but refuse to execute a written waiver of his right to
    counsel making it impossible to proceed with his trial. Obviously,
    such a situation would render the judicial system a mockery.
    Id. at 1341. Further, this Court found that any error was harmless because
    the defendant failed to explain how he was prejudiced by the absence of
    counsel at a preliminary hearing. Id.
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    J-S55030-18
    In light of the foregoing, we conclude Appellant is not entitled to relief.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/26/19
    ____________________________________________
    The “Catch-22” problem does not arise here because Appellant had
    appointed counsel. Further, given Appellant’s failure to attempt to prove
    prejudice in accord with the cases discussed in the main text, we need not
    decide whether Bastone, decided under Rule 318, applies with equal force to
    Rule 121. Likewise, we need not consider the Commonwealth’s assertion that
    Appellant’s behavior resulted in forfeiture of his right to counsel.
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