Com. v. Roberts, A., Jr.

Superior Court of Pennsylvania

Com. v. Roberts, A., Jr.

Superior Court of Pennsylvania·Decided February 3, 2026·No. 58 MDA 2025·Unpublished·Panella

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

ALLEN PHYLETUS ROBERTS, JR. :

:

Appellant : No. 58 MDA 2025

Appeal from the Judgment of Sentence Entered January 13, 2025 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000529-2024

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J. MEMORANDUM BY PANELLA, P.J.E.: FILED: FEBRUARY 3, 2026 Allen Phyletus Roberts appeals, pro se, from the judgment of sentence entered in the Court of Common Pleas of Dauphin County for his convictions of Driving Under the Influence (“DUI”): Combination of Alcohol/Drugs, 75 Pa.C.S.A. § 3802(d)(3), and summary offenses of Failure to Stop at Red Light, 75 Pa.C.S.A. § 3112(a)(3)(i), Improper Left Turn, 75 Pa.C.S.A. § 3331(b), and Improper Sunscreening, 75 Pa.C.S.A. § 4524(e)(1). Roberts purports to raise various issues regarding the validity of the traffic stop and the sufficiency of the evidence. However, our independent review of the record indicates that the waiver of counsel colloquy did not fully comply with Pennsylvania Rule of Criminal Procedure 121. We are constrained to make this finding despite the conscientious efforts of the trial judge to properly advise Roberts. Therefore, we must vacate Roberts’ judgment of sentence and remand for a new suppression hearing and trial.

On August 26, 2023, Roberts was pulled over by a Pennsylvania State Trooper near the Capitol Complex in Harrisburg for running through a red light. The trooper initiated a traffic stop and upon approaching Roberts’ vehicle observed that the window tint completely obscured the driver. While interacting with Roberts, the trooper observed that Roberts had bloodshot, glassy eyes, an odor of marijuana, and ash on the console. Roberts also admitted to consuming alcohol before driving. After checking Roberts’ driver’s license and vehicle registration, the trooper informed Roberts that he suspected Roberts to be under the influence and that Roberts would need to perform a roadside sobriety test before he was permitted to leave. Roberts refused to cooperate.

The trooper gave Roberts numerous opportunities to cooperate and take a field sobriety test but Roberts continued to refuse. Roberts had to be forcibly removed from his vehicle by multiple officers and the use of a taser. Thereafter, Roberts continued to refuse to submit to any form of DUI testing such that the trooper was never able to conduct a field sobriety test or obtain a blood test. At the suppression hearing, the trooper referred to the stop as “one [in a] thousand[]” based on Roberts defiant behavior and repeated refusal to cooperate. N.T., 11/6/24, at 26.1

1 We commend the trooper and other officers for their professional behavior during this unfortunate occurrence.

Roberts was charged with the above-mentioned offenses and resisting arrest, 18 Pa.C.S.A. § 5104. Roberts filed a pro se suppression motion and a hearing was held on November 6, 2024. Before the suppression hearing began, the trial court colloquied Roberts on his right to counsel and found that Roberts voluntarily and knowingly waived his right to counsel. At the conclusion of the hearing, the trial court denied Roberts’ suppression motion and the Commonwealth withdrew the charge of resisting arrest.

The matter proceeded to a non-jury trial on January 13, 2025. The trial court found Roberts guilty of the remaining charges and sentenced him to 72 hours incarceration, six months’ probation, and costs and fines. Roberts timely appealed pro se. He filed a court ordered concise statement and the trial court filed an opinion in support of its ruling.2 See Pa.R.A.P. 1925(a)-(b).

On appeal, Roberts raises various issues regarding the validity of the traffic stop and the sufficiency of the evidence.

2 On appeal various procedural matters occurred before our present review.

The trial court filed a supplemental opinion after the transcript of the bench trial was filed. We dismissed Roberts’ appeal for failure to file a brief and, upon his request, reinstated his appeal. See Order, 7/2/25; Order, 7/17/25. Roberts filed his appellate brief and various applications for relief. We ordered the trial court to review the record and inform this Court whether the document mentioned by Roberts should be included in the certified record. See Order, 8/8/25. The trial court issued a statement that based on its review of the record there was no “Exhibit 14.” See Trial Court Statement, 8/15/25. Thereafter, the Commonwealth filed its brief, Roberts filed a reply brief, and the matter was submitted to this panel for review.

However, before we can address those issues we must consider whether Roberts voluntarily and knowingly waived his right to counsel. When a defendant represents himself on appeal we may raise this issue sua sponte. See Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa. Super. 2017) (raising the issue sua sponte for a pro se appellant); see also Commonwealth v. Gorrio, No. 807 MDA 2022, 2023 WL 8111852, at *2-3 (Pa. Super. filed Nov. 22, 2023) (unpublished memorandum) (finding waiver of challenge to the defendant’s waiver of his right to counsel when the defendant was represented by counsel on appeal but failed to raise the issue in his 1925(b) statement).3 “A trial court’s thorough inquiry into the accused’s appreciation of both the right to counsel and the right to represent oneself must be used in certain summary proceedings, at trial, guilty plea hearings, sentencing, and every ‘critical stage’ of a criminal proceeding.” Commonwealth v. Forrester- Westad, 282 A.3d 811, 816-17 (Pa. Super. 2022) (citation, brackets, and emphasis omitted). We have recognized that a suppression hearing constitutes a critical stage. See Johnson, 158 A.3d at 123.

“It is the responsibility of the trial court to ensure that a colloquy is performed if the defendant has invoked his right to self-representation.” Id. at 121 (citation omitted). “Deprivation of the right to counsel, or the right to

3 Unpublished memorandums filed after May 1, 2019, may be cited for their persuasive value. See Pa.R.A.P. 126(b).

waive counsel, can never be harmless.” Commonwealth v. Phillips, 141 A.3d 512, 517 (Pa. Super. 2016) (citation omitted).

Pennsylvania Rule of Criminal Procedure 121 sets forth the minimum requirements for a valid waiver of counsel colloquy.

(A) Generally.

(1) The defendant may waive the right to be represented by counsel.

(2) 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 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.C.P. 121(A)(1)-(2).

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