Com. v. Batista, N., Jr.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

NICOLAS ELPIDIO BATISTA, JR. :

:

Appellant : No. 1369 MDA 2025

Appeal from the Judgment of Sentence Entered September 8, 2025 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003031-2024

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J. MEMORANDUM BY BOWES, J.: FILED: AUGUST 17, 2026 Nicolas Elpidio Batista, Jr., appeals pro se from the judgment of sentence of eight days of time served plus costs imposed upon his conviction for the misdemeanor offense of possession of a small amount of marijuana. We remand for a trial court opinion addressing whether Appellant made a valid waiver of his right to counsel before he represented himself at trial.

Our examination of the docket and certified record reveals that no attorney entered an appearance on behalf of Appellant in the trial court, where Appellant has represented himself in all filings and record proceedings, including the September 8, 2025 bench trial at which he was convicted and

2

sentenced as indicated above.1 He filed this timely appeal without first pursuing post-sentence motions. The trial court entered, and the clerk of courts mailed to Appellant, an order directing him to file and serve upon the trial judge a concise statement of errors complained of on appeal. 2 Appellant filed a statement containing a host of issues, but he did not serve it upon the trial judge.3 This Court noted Appellant’s pro se status and the absence of an indication on the docket that he waived his right to appellate counsel following a colloquy as required by Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (requiring an on-the-record determination that a defendant has made a knowing, intelligent, and voluntary waiver of his right to counsel on appeal). Accordingly, we remanded the case for the trial court to conduct a Grazier hearing. The trial court held a hearing and determined that Appellant wished to proceed pro se in this appeal.

____________________________________________

1 The trial court docket lists the Berks County Public Defender’s Office in the

attorney information for Appellant in the lower court, which we take to mean the magisterial district court, but notes that no entry of appearance was filed in the trial court.

2 The trial court’s order fully complied with the mandates of Pa.R.A.P. 1925(b)(3).

3 Notably, no complaint that the trial court failed to ensure Appellant made a

knowing and voluntary waiver of his right to counsel prior to trial was among the various errors alleged.

3

Thereafter, the court authored a Pa.R.A.P. 1925(a) statement opining that Appellant failed to preserve any issues for appeal by not serving his Rule 1925(b) statement on the trial judge.4 Appellant filed his pro se brief in this Court opting not to address the trial court’s waiver position and raising as his primary issue a claim that the trial court erred in allowing him to represent himself at trial without first conducting a colloquy in accordance with Pa.R.Crim.P. 121.5 See Appellant’s brief at 3-4. In its brief, the

____________________________________________

4 The trial court’s Rule 1925(a) statement, in offering authority for its waiver

position, improperly included a citation to a 2018 unpublished memorandum decision of this Court. We remind the trial court that, with exceptions not implicated here, “[a]n unpublished memorandum decision filed prior to May 2, 2019, shall not be relied upon or cited by a Court or a party in any other action or proceeding[.]” 210 Pa.Code § 65.37(B).

5 Rule 121 provides in relevant part as follows:

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:

(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 (Footnote Continued Next Page)

4

Commonwealth echoes the trial court’s suggestion of wholesale waiver, advocating for it both on the vague contents of the Rule 1925(b) statement and Appellant’s failure to serve it on the trial judge. See Commonwealth’s brief at 6-8. The Commonwealth further argues that Appellant waived his challenge to the validity of his waiver of counsel by not including it in his Rule 1925(b) statement. Id. at 8-9.

We cannot find waiver upon the record as it stands. “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. Isaac, 205 A.3d 358, 363 (Pa.Super. 2019) (cleaned up). This “penetrating and comprehensive colloquy is mandatory, regardless of the defendant’s

____________________________________________

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).

5

experience with the system.” Id. (cleaned up). Likewise, “[t]he question of waiver of counsel must be determined regardless of whether the accused can or cannot afford to engage counsel.” Commonwealth v. Clyburn, 42 A.3d 296, 300 (Pa.Super. 2012) (cleaned up). Furthermore, a trial court’s “[f]ailure to conduct a thorough, on-the-record colloquy before allowing a defendant to proceed to trial pro se constitutes reversible error on direct appeal.” Isaac, 205 A.3d at 363 (cleaned up).

Critically, unless and until a defendant makes a valid waiver of his right to counsel, he cannot be faulted for failing to raise claims of error while he was proceeding pro se. In a case procedurally similar to the instant appeal, our Supreme Court declared that the failure of a pro se criminal defendant to preserve issues by properly presenting them to the trial court only results in waiver if that defendant first made a knowing, voluntary, and intelligent waiver of his right to counsel. See Commonwealth v. Monica, 597 A.2d 600, 603 (Pa. 1991).

As such, whether Appellant made a knowing and voluntary waiver of his right to counsel prior to trial, evinced by an on-the-record Rule 121 colloquy, is determinative. If he did, then he was properly pro se at the time he failed to serve his Rule 1925(b) statement and he waived his appellate issues. See Imbrenda v. Imbrenda, 350 A.3d 1061, 1068 (Pa.Super. 2026) (indicating that, where the trial court’s Rule 1925(b) order is valid, the failure to timely serve the trial judge with the statement results in the waiver of all issues).

6

On the other hand, if the trial court did not conduct a proper on-the-

record inquiry before Appellant’s bench trial, then we must vacate his sentence and conviction and remand for a new trial at which Appellant is either represented by counsel or proceeds pro se following a valid Rule 121 colloquy. See Monica, 597 A.2d at 604 (reversing this Court’s ruling that the defendant who was pro se at trial waived his appellate challenge to the validity of his waiver of the right to counsel by failing to raise it in the trial court and remanding the case for a new trial because “the trial court committed reversible error by allowing [the a]ppellant to proceed with trial under his own representation without first conducting a thorough on-the-record colloquy to determine whether [he] knowingly and understandingly made a decision to represent himself and also to determine the validity of his waiver of the constitutional right to representation by counsel”).

We have found no evidence of a proper pre-trial waiver in the certified record before us 6 However, we cannot be certain that Appellant has ensured

____________________________________________

6 Noticeably absent from the Commonwealth’s brief is a contention that the trial court conducted a Rule 121 colloquy prior to Appellant’s trial.

In that vein, we note that, at the Grazier hearing conducted to confirm the validity of Appellant’s right to appellate counsel, the trial court expressed its determination that he desired to waive his right to counsel without delving into Appellant’s understanding of the matters addressed in Rule 121(A)(2). The Commonwealth intervened to inquire into his comprehension of those six topics, with Appellant inaptly invoking the Fifth Amendment each time. See N.T. Grazier Hearing, 12/3/25, at 6-7. Thereafter, the trial court was able to (Footnote Continued Next Page)

7

that we have a complete record. Accordingly, we remand this case to the trial court for preparation of an opinion within thirty days of the date of this memorandum that either: (1) directs us to the on-the-record proceeding at which it believes Appellant made an effective waiver of his right to be represented by counsel at trial following a colloquy compliant with Rule 121, or (2) opines that no such colloquy took place. If necessary, the court shall also ensure that the certified record is supplemented with relevant, but omitted, notes of testimony.

Case remanded with instructions. Jurisdiction retained.

____________________________________________

elicit from Appellant that nothing in the Rule 121(A)(2) admonitions changed his desire to represent himself on appeal. Id. at 7.

The notes of testimony included in the certified record for proceedings predating this appeal, while at times referencing Appellant’s desire to represent himself, do not evince similar proactivity on the part of the Commonwealth in assisting the trial court to ensure that Appellant made a knowing and voluntary waiver of counsel.