J-S14001-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JILL M. FOSTER : : Appellant : No. 2153 EDA 2024
Appeal from the Judgment of Sentence Entered July 15, 2024 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001676-2021
BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED MAY 22, 2025
Appellant, Jill M. Foster, appeals pro se from the July 15, 2024 judgment
of sentence entered in the Chester County Court of Common Pleas following
her conviction of Tampering with Evidence.1 After careful review, we conclude
that the trial court did not conduct a sufficient colloquy to determine whether
Appellant’s waiver of counsel was knowing, intelligent, and voluntary.
Accordingly, we are constrained to vacate the judgment of sentence and the
order permitting counsel to withdraw and remand for a new sentencing
hearing.2 ____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 4910(1).
2 In light of our remand for a proper determination of whether Appellant wishes to waive her right to counsel and for resentencing, we decline to address the six issues raised pro se by Appellant as they are not ripe for review. J-S14001-25
As relevant to our review, the trial court presided over a two-day jury
trial at which Eric D. Strand, Esq., represented Appellant. On March 7, 2024,
the jury convicted Appellant of Tampering with Evidence but found her not
guilty of Obstructing Administration of Law. Upon Appellant’s request,
Attorney Strand filed a motion for leave to withdraw as counsel, which the
trial court granted on April 24, 2024.
On May 15, 2024, Assistant Public Defender Robbie Goring entered her
appearance for Appellant. On July 3, 2024, prior to sentencing, Attorney
Goring filed a motion to withdraw as counsel, asserting that Appellant sought
to represent herself. On July 15, 2024, the court engaged in the following
colloquy:
THE COURT: . . . Miss Foster, so we’re going to talk about the motion to withdraw as counsel first. Miss Foster, Miss Goring is asking to be released from your case in terms of not representing you today at sentencing.
Is that your desire?
THE DEFENDANT: Yes.
THE COURT: So it’s very uncommon — as you know, I already let Mr. Strand out. I allowed him to withdraw as well.
So what is going on that your relationship with Miss Goring is not productive?
THE DEFENDANT: I just — I am choosing to represent myself because I want to be the person that’s in charge of the communication, the decisions made for my case.
THE COURT: Are you aware that you are, in fact, the person, even though you have a lawyer, that’s in charge of decisions?
-2- J-S14001-25
THE COURT: And that whatever happens today, if you choose to appeal or file a PCRA, that you are going to do that without counsel at this point. Is that what I am hearing?
THE COURT: Miss Goring, can you put any reasons on record?
MS. GORING: Your Honor, I did outline them in my motion -- essentially, Miss Foster, at numerous points throughout my representation of her, has asked to represent herself. I have explained what that would look like. I have, even though she’s asked me to withdraw, I have coached her through the guidelines. I have shown her her guidelines. I have a prior record score, her offense gravity score. I walked her through that. I walked her through what today would look like. I have spoken to her about what we would ask for today. I have spoken to her about any witnesses that she would call.
I am prepared as her representation. However, I realize that is not — if that is not her wish, I have asked her numerous times, as recently as Saturday, she still reiterates she wants to represent herself. And that’s all I have to present for that.
THE COURT: All right.
And everything that Miss Goring says, is that accurate, Miss Foster?
THE COURT: At this point, obviously, I am a big fan of a client having their choice of their representation, even if they choose to pick themselves as their lawyer.
So what I need you to understand, ma’am, is if you are proceeding pro se, or self-represented today, you have -- I am holding you to the same standards as if an attorney was representing you as well.
THE DEFENDANT: I understand that.
THE COURT: Okay.
All right. So, Miss Goring, I will sign the order permitting you to withdraw from the case.
-3- J-S14001-25
N.T. Hr’g, 7/15/24, at 2-4. The court proceeded immediately to the
sentencing hearing at which Appellant represented herself. The court
sentenced her to two years of probation, 25 hours of community service, and
costs.
On August 13, 2024, Appellant filed pro se a notice of appeal, after which
Appellant and the trial court complied with Pa.R.A.P. 1925.
Prior to considering any issues raised by Appellant, we must first
consider whether the trial court conducted a sufficient Grazier3 hearing prior
to sentencing, as this Court has a duty to review sua sponte whether an
appellant knowingly, voluntarily and intelligently waived her right to counsel.
See Commonwealth v. Murphy, 214 A.3d 675, 678 (Pa. Super. 2019);
Commonwealth v. Johnson, 158 A.3d 117, 121-122 (Pa. Super. 2017).
The Sixth Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution guarantee a defendant’s right to
counsel. It is well-established that the right to counsel applies at “every
‘critical stage’ of a criminal proceeding” including at sentencing, as relevant to
the instant case. Johnson, 158 A.3d at 122 (citation omitted). “A defendant
also has a constitutional right to self-representation” by waiving her right to
counsel. Commonwealth v. Isaac, 205 A.3d 358, 363 (Pa. 2019).
The Rules of Criminal Procedure task the trial court with the ultimate
responsibility of determining “whether the defendant is [] making an informed
____________________________________________
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-4- J-S14001-25
and independent decision to waive counsel.” Commonwealth v. Davido,
868 A.2d 431, 437 (Pa. 2005). In so doing, the court must address the
following six categories of information “[t]o ensure that the defendant’s waiver
of the right to counsel is knowing, voluntary, and intelligent:”
(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;
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J-S14001-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JILL M. FOSTER : : Appellant : No. 2153 EDA 2024
Appeal from the Judgment of Sentence Entered July 15, 2024 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001676-2021
BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED MAY 22, 2025
Appellant, Jill M. Foster, appeals pro se from the July 15, 2024 judgment
of sentence entered in the Chester County Court of Common Pleas following
her conviction of Tampering with Evidence.1 After careful review, we conclude
that the trial court did not conduct a sufficient colloquy to determine whether
Appellant’s waiver of counsel was knowing, intelligent, and voluntary.
Accordingly, we are constrained to vacate the judgment of sentence and the
order permitting counsel to withdraw and remand for a new sentencing
hearing.2 ____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 4910(1).
2 In light of our remand for a proper determination of whether Appellant wishes to waive her right to counsel and for resentencing, we decline to address the six issues raised pro se by Appellant as they are not ripe for review. J-S14001-25
As relevant to our review, the trial court presided over a two-day jury
trial at which Eric D. Strand, Esq., represented Appellant. On March 7, 2024,
the jury convicted Appellant of Tampering with Evidence but found her not
guilty of Obstructing Administration of Law. Upon Appellant’s request,
Attorney Strand filed a motion for leave to withdraw as counsel, which the
trial court granted on April 24, 2024.
On May 15, 2024, Assistant Public Defender Robbie Goring entered her
appearance for Appellant. On July 3, 2024, prior to sentencing, Attorney
Goring filed a motion to withdraw as counsel, asserting that Appellant sought
to represent herself. On July 15, 2024, the court engaged in the following
colloquy:
THE COURT: . . . Miss Foster, so we’re going to talk about the motion to withdraw as counsel first. Miss Foster, Miss Goring is asking to be released from your case in terms of not representing you today at sentencing.
Is that your desire?
THE DEFENDANT: Yes.
THE COURT: So it’s very uncommon — as you know, I already let Mr. Strand out. I allowed him to withdraw as well.
So what is going on that your relationship with Miss Goring is not productive?
THE DEFENDANT: I just — I am choosing to represent myself because I want to be the person that’s in charge of the communication, the decisions made for my case.
THE COURT: Are you aware that you are, in fact, the person, even though you have a lawyer, that’s in charge of decisions?
-2- J-S14001-25
THE COURT: And that whatever happens today, if you choose to appeal or file a PCRA, that you are going to do that without counsel at this point. Is that what I am hearing?
THE COURT: Miss Goring, can you put any reasons on record?
MS. GORING: Your Honor, I did outline them in my motion -- essentially, Miss Foster, at numerous points throughout my representation of her, has asked to represent herself. I have explained what that would look like. I have, even though she’s asked me to withdraw, I have coached her through the guidelines. I have shown her her guidelines. I have a prior record score, her offense gravity score. I walked her through that. I walked her through what today would look like. I have spoken to her about what we would ask for today. I have spoken to her about any witnesses that she would call.
I am prepared as her representation. However, I realize that is not — if that is not her wish, I have asked her numerous times, as recently as Saturday, she still reiterates she wants to represent herself. And that’s all I have to present for that.
THE COURT: All right.
And everything that Miss Goring says, is that accurate, Miss Foster?
THE COURT: At this point, obviously, I am a big fan of a client having their choice of their representation, even if they choose to pick themselves as their lawyer.
So what I need you to understand, ma’am, is if you are proceeding pro se, or self-represented today, you have -- I am holding you to the same standards as if an attorney was representing you as well.
THE DEFENDANT: I understand that.
THE COURT: Okay.
All right. So, Miss Goring, I will sign the order permitting you to withdraw from the case.
-3- J-S14001-25
N.T. Hr’g, 7/15/24, at 2-4. The court proceeded immediately to the
sentencing hearing at which Appellant represented herself. The court
sentenced her to two years of probation, 25 hours of community service, and
costs.
On August 13, 2024, Appellant filed pro se a notice of appeal, after which
Appellant and the trial court complied with Pa.R.A.P. 1925.
Prior to considering any issues raised by Appellant, we must first
consider whether the trial court conducted a sufficient Grazier3 hearing prior
to sentencing, as this Court has a duty to review sua sponte whether an
appellant knowingly, voluntarily and intelligently waived her right to counsel.
See Commonwealth v. Murphy, 214 A.3d 675, 678 (Pa. Super. 2019);
Commonwealth v. Johnson, 158 A.3d 117, 121-122 (Pa. Super. 2017).
The Sixth Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution guarantee a defendant’s right to
counsel. It is well-established that the right to counsel applies at “every
‘critical stage’ of a criminal proceeding” including at sentencing, as relevant to
the instant case. Johnson, 158 A.3d at 122 (citation omitted). “A defendant
also has a constitutional right to self-representation” by waiving her right to
counsel. Commonwealth v. Isaac, 205 A.3d 358, 363 (Pa. 2019).
The Rules of Criminal Procedure task the trial court with the ultimate
responsibility of determining “whether the defendant is [] making an informed
____________________________________________
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-4- J-S14001-25
and independent decision to waive counsel.” Commonwealth v. Davido,
868 A.2d 431, 437 (Pa. 2005). In so doing, the court must address the
following six categories of information “[t]o ensure that the defendant’s waiver
of the right to counsel is knowing, voluntary, and intelligent:”
(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 court’s failure to conduct a valid colloquy before
allowing a defendant to proceed pro se constitutes reversible error.”
Commonwealth v. Floyd, 257 A.3d 13, 18 (Pa. Super. 2020).
After careful review, we conclude that the colloquy in the instant case
did not satisfy the applicable requirements of Rule 121(A)(2), specifically
-5- J-S14001-25
subparagraphs (a), (c), and (f).4 First, the trial court did not clarify Appellant’s
understanding of her right to counsel. Pa.R.Crim.P. 121(A)(2)(a). Second, in
regard to subparagraph (c), the record demonstrates that Attorney Goring
stated that she reviewed the sentencing guidelines with Appellant, but there
is no indication that the trial court satisfied its responsibility to determine that
Appellant was “aware of the permissible range of sentences and/or fines for
the offenses charged.” Pa.R.Crim.P. 121(A)(2)(c). Additionally, the court did
not inform Appellant that she had “rights that, if not timely asserted, may be
lost permanently” or that if errors occurred, she could lose the ability to
contest those errors if she did not timely object. Pa.R.Crim.P. 121(A)(2)(f).
Indeed, the court did not explicitly determine whether Appellant’s waiver was
knowing, intelligent, and voluntary. Accordingly, we conclude that the court
did not conduct the necessary, thorough, on-the-record inquiry prior to
permitting counsel to withdraw.
Based upon the stated insufficiencies, we vacate the judgment of
sentence and the order permitting counsel to withdraw and remand for
resentencing. Prior to resentencing, the court must determine whether
Appellant intends to waive her right to counsel by conducting a colloquy as
required by Rule 121.
4 As this Court recognized in the PCRA setting, while not all of Rule 121’s categories are relevant at the sentencing stage, “the remainder . . . clearly impact on whether a defendant understands the full import of his decision to act as his own counsel[.]” Commonwealth v. Robinson, 970 A.2d 455, 459 (Pa. Super. 2009) (en banc).
-6- J-S14001-25
Judgment of sentence and order permitting withdrawal of counsel
vacated. Case remanded for further proceedings. Jurisdiction relinquished.
Date: 5/22/2025
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