Com. v. Flowers, J., Jr., 97 MDA 2017

James Leslie Flowers was convicted by a jury of delivery of a controlled substance, possession with intent to deliver, and possession; sentence 27–54 months (with counts merged for sentencing).
Public Defender Andrea Thompson represented Flowers at trial; after trial but before sentencing Flowers began filing pro se motions including a notice of appeal and a PCRA petition alleging ineffective assistance of Thompson.
Thompson moved to withdraw; Claude A.L. Shields was appointed and represented Flowers at sentencing, which Flowers disrupted and during which he was held in contempt and removed; Shields later moved to withdraw.
The trial court granted Shields’ withdrawal and permitted Flowers to proceed pro se with Shields as standby counsel; Flowers filed additional pro se motions and an appeal to the Superior Court.
The Superior Court initially remanded for a Grazier hearing to determine whether Flowers knowingly and voluntarily waived counsel on direct appeal because the record did not show a proper waiver colloquy.
The trial court certified a November 10, 2016 transcript and concluded the Grazier requirements were met; the Superior Court, reviewing the transcript, found the colloquy deficient and again remanded for a proper Grazier hearing within 30 days.

Issue	Flowers' Argument	Commonwealth's Argument	Held
Whether Flowers validly waived right to counsel for direct appeal	Flowers asserted he wished to represent himself and sought pro se status and relief including bail for appeal	Commonwealth relied on trial court orders permitting pro se representation and Shields’ withdrawal	Superior Court held the record lacked a proper Rule 121/Grazier colloquy; remand for a Grazier hearing required
Whether the trial court’s November colloquy satisfied Rule 121 requirements	Flowers pointed to his on-record statement that he wanted to represent himself and that it was voluntary	Commonwealth pointed to the court’s acceptance of Flowers’ on-the-record statement and the order allowing pro se status	Court found the colloquy too perfunctory and not addressing Rule 121 factors (charges, penalties, rights lost, defendant’s background)
Whether Flowers’ pro se filings and motions effected waiver of counsel	Flowers’ filings indicated his desire to proceed pro se and raise claims (e.g., jurisdiction)	Commonwealth argued existing orders and Flowers’ statements supported waiver	Court held filings alone are insufficient; an on-the-record, comprehensive waiver inquiry is required
Whether Superior Court could reach merits absent proper waiver showing	Flowers sought review of six pro se issues on appeal	Commonwealth maintained procedural posture required resolution of waiver first	Court declined to reach merits and remanded to cure waiver deficiency

Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (affirming constitutional right to counsel on direct appeal)
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (setting standard for on-the-record waiver of appellate counsel)
Commonwealth v. El, 977 A.2d 1158 (Pa. 2009) (defendant may proceed pro se only after knowing, intelligent, voluntary waiver)
Commonwealth v. Phillips, 93 A.3d 847 (Pa. Super. 2014) (Rule 121 factors and inquiry requirements for waiver)
Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011) (prisoner mailbox rule for timely filing)
Commonwealth v. Rucker, 761 A.2d 541 (Pa. 2001) (no right to choose appointed counsel)
Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (appeal lies from judgment of sentence, not order denying post-sentence motion)