Com. v. Andrews, A. ( 2022 )

J-A17042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AURICE ANDRE ANDREWS :
:
Appellant : No. 2161 EDA 2021
Appeal from the Judgment of Sentence Entered August 24, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000888-2019
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 17, 2022
Appellant, Aurice Andre Andrews, appeals from the judgment of
sentence imposed after a jury found him guilty of accidents involving damage
to an attended vehicle or property and the trial court found him guilty of a
summary offense for driving while operating privileges are suspended or
revoked.1 During his trial, the lower court permitted him to proceed pro se
and directed his appointed counsel to serve as standby counsel. On appeal,
Appellant challenges the admission of chemical testing results for controlled
substances, that were entered via a stipulation, and asserts that the lower
court erred by not conducting a proper colloquy prior to denying his request
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* Retired Senior Judge assigned to the Superior Court.
175 Pa.C.S. § 3743(a) and 75 Pa.C.S. § 1543(b)(1)(i), respectively. See N.T.
3/11/20, 15-16 (driving while operating privileges are suspended or revoked
charge amended prior to trial).
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for the appointment of a new attorney before permitting him to proceed pro
se. Upon careful review, we affirm.
The lower court has summarized the facts presented at trial as follows:
On January 8, 2019, at approximately 12:15 p.m., Officer Brett
Cortis (“Ofc. Cortis”) of the Pottstown Police Department
responded to a report of [a] vehicle accident at the intersection of
Hanover and Chestnut Streets in Pottstown, Montgomery County.
Upon arrival at the scene, Ofc. Cortis encountered ‘hit and run’
victim, John Hendersched. Mr. Hendersched immediately advised
Ofc. Cortis that [Appellant], who had not stopped after crashing
into the rear of Mr. Hendersched’s vehicle, had fled eastbound on
Chestnut Street in a black SUV, bearing PA plate registration
(KXA-2124).
Ofc. Cortis immediately left the scene to pursue [Appellant].
Seconds later, Ofc. Cortis observed what he soon identified as
[Appellant’s] vehicle, traveling 6-7 blocks ahead of him. Within
minutes of speaking with Mr. Hendersched, Ofc. Cortis
apprehended [Appellant] some ten blocks away after conducting
a vehicle stop of the black Mercury Mountaineer bearing the
previously identified PA registration (KXA-2124) driven by
[Appellant]. [Appellant’s] vehicle had fresh damage to the front
passenger side bumper, and broken pieces of plastic and lens on
the bumper and within the vehicle’s front grill.
Pottstown Police Department’s Sergeant Michael Ponto (“Sgt.
Ponto”) who arrived at the accident scene shortly after Ofc.
Cortis’s departure, joined Ofc. Cortis minutes later to assist with
the traffic stop. Upon initially approaching [Appellant’s] driver
side window, Ofc. Cortis observed him to be the sole occupant of
the vehicle. When asked, [Appellant] identified himself to Ofc.
Cortis, but said he did not have his I.D. on him. [Appellant] denied
having been involved in an accident, stating instead that he was
just coming home from a trip to the store, but could not provide
his home address or its location which Ofc. Cortis later learned
was located one block east from where he had stopped
[Appellant].
Both Ofc. Cortis and Sgt. Pronto observed that [Appellant’s] eyes
were red and bloodshot, his movements slow and deliberate, he
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had difficulty thumbing through his paperwork to locate his
registration and proof of insurance, and notably, was only wearing
one shoe. Based on their observations, Sgt. Ponto asked
[Appellant] to exit his vehicle. While conducting a weapons pat-
down for officer safety, [Appellant] was unable to maintain his
balance, falling forward and backwards so that Sgt. Ponto
repeatedly had to catch him to prevent him from falling down.
Sgt. Ponto took [Appellant] into custody, and after transporting
him to Pottstown Hospital for a blood draw, Sgt. Ponto returned
[Appellant] to the Pottstown Police Department. In searching
[Appellant] before placing him in the cellblock, Sgt. Ponto located
a black [Ziploc] bag with a white residue in [Appellant’s] rear
pant’s pocket, as well as a partially burnt hand-rolled cigarette
(joint), which [Appellant] himself identified as “K2,” a commonly
used term for synthetic marijuana. Law enforcement further
confirmed that, from the time they apprehended him during the
traffic stop, until he was searched at the station, [Appellant] was
never left unattended, with the exception of a brief period in which
[Appellant] was seated in the rear of Sgt. Ponto’s patrol vehicle,
while pictures for the investigation were taken.
Trial Ct. Op., 1/25/22, 1-3 (footnotes with record citations omitted).
Appellant proceeded to be tried by a jury on March 11-12, 2020. In the
addition to the above-referenced offenses, Appellant was charged with
knowing or intentional possession of a controlled substance and two counts of
possession of drug paraphernalia.2 Amended Bills of Information, 12/20/19,
1-2.
At the start of the proceedings, the court sought to clarify that Appellant
wished to proceed with his appointed counsel and Appellant responded that
he was “undecided” about that:
THE COURT: All right. The next thing is, I just want to make clear
that you want to move forward with [appointed counsel]
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2 35 P.S. § 113(a)(16), and 35 P.S. § 113(a)(32), respectively.
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representing you. I think that’s accurate. I think you told me that
you did want to have counsel; correct? And you don’t want to
represent yourself; is that correct?
THE DEFENDANT: I’m undecided, because actually I just found
out that I was having a trial.
N.T. 3/11/20, 6. The court reminded Appellant that he had prior notice of the
trial date and Appellant noted that he had met with his counsel on a prior
Sunday. Id. The court again sought to confirm that Appellant wanted to
proceed with his counsel and Appellant gave a non-responsive answer about
not feeling “like [he] was ever arrested,” alluding to a previously litigated
claim. Id. The court and Appellant then had an exchange where the court
informed Appellant that he needed to cooperate with his attorney and
Appellant said that his counsel was not cooperating with him. Id. at 7-8. The
court assured him that his counsel was a “very seasoned trial attorney” and a
“very good lawyer.” Id. at 8. The court next tried to get Appellant confirm
that he would not be disruptive in front of the jury and Appellant tried to
discuss a previously rejected challenge to an affidavit of probable cause. Id.
at 8-12.
After Appellant referred to his attorney as “fresh out of school,” his
counsel made a motion for the appointment of conflict counsel, noting “that
there ha[d] been a breakdown” in his attorney-client relationship and that
Appellant was not trusting what he had been telling him. N.T. 3/11/20, 12.
The Commonwealth objected based on the timing of the request, on the day
that trial would begin, and the prosecutor’s stated assumption that Appellant
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would have similar issues with another attorney. Id. The court denied the
request. Id. Voir dire followed and the Commonwealth opened its case-in-
chief with the presentation of Officer Cortis’s testimony.
On the second day of the trial, the Commonwealth presented the
testimony of Mr. Hendersched, Cynthia Myers, Linda McGinn, and Sergeant
Ponto. Ms. Myers was a passenger in Mr. Hendersched’s car, along with her
twenty-one-year-old daughter and her six-month-old grandson. N.T.
3/12/20, 10. Ms. Ginn was a pedestrian witness who heard the crash,
reported Appellant’s license plate number to the police, and identified
Appellant at trial as the driver of the black SUV at the scene. Id. at 33-36.
In between the presentation of testimony from Ms. Myers and Ms.
McGinn, Appellant indicated his interest in proceeding pro se because he did
not feel that his counsel was “representing [him] correctly.” N.T. 3/12/20,
14. The court conducted a colloquy with Appellant to ascertain the
voluntariness of his request, and his awareness of the responsibilities he would
assume by acting as his own counsel as well his sentencing exposure. Id. at
14-17. Appellant cited a lack of agreement and communication as his basis
for wanting to remove his counsel: “That’s what I’m saying, I don’t want him.
I don’t want this man sitting here misrepresenting me. We’re not even on the
same page. He’s making decisions about my life without me even knowing
about it.” Id. at 22. The court denied his request for the appointment of a
new attorney and gave him the choice of proceeding pro se or with existing
counsel. Id. at 24-31. After Appellant gave non-responsive answers to the
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offered choices, the court resumed the proceedings with counsel remaining in
place. Id. at 31.
The Commonwealth proceeded to present the testimony of Ms. McGinn
and Sergeant Ponto. When it came time for the cross-examination of Sergeant
Ponto, Appellant’s counsel informed the court that Appellant wished to proceed
pro se. N.T. 3/12/20, 50-51. The court again conducted a colloquy with
Appellant to confirm his understanding of his sentencing exposure. Id. at 51-
55. The court permitted Appellant to proceed pro se and designated his
attorney to serve as standby counsel. Id. at 56.
At the end of the Commonwealth’s case-in-chief, the Commonwealth
moved to enter stipulations into the record that Appellant’s counsel had
agreed to prior to Appellant’s decision to proceed pro se. N.T. 3/12/20, 75-
76. The stipulations addressed the chemical testing results for the partially
burnt cigarette and bag that were recovered from Appellant following his
arrest and were found to contain synthetic marijuana. Id. at 76, 95; Exhibit
C-11 (written copy of the stipulations). The court informed Appellant that he
was bound by the stipulation agreement that his counsel had already made,
and Appellant contested that point. N.T. 3/12/20, 76 (“I don’t agree to that.
And we did not discuss that. That’s the reason why I’m defending myself now.
We did not discuss that, I did not agree to that.”). The court proposed sua
sponte declaring a mistrial and holding a new trial at which point Appellant
could litigate pre-trial motions and be tried again either while acting pro se or
proceeding with any retained counsel. Id. at 77.
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After taking a recess, the court backtracked on its mistrial suggestion
and reiterated that Appellant was “bound by the stipulations that [his] counsel
entered into when [counsel] was representing” him. N.T. 3/12/20, 82. The
court noted Appellant’s objection to the stipulation and denied Appellant’s
subsequent requests for a mistrial. Id. at 81, 89. Appellant did not present
any evidence.
At the conclusion of the trial, the jury found Appellant guilty of accidents
involving damage to an attended vehicle or property and deadlocked on the
remaining charges. N.T. 3/12/20, 149-50. The court found Appellant guilty
of the remaining charge, the summary count for driving while operating
privileges are suspended or revoked. Id. at 151. At a deferred sentencing
hearing, the court accepted the Commonwealth’s recommendation and
imposed a statutory minimum sixty-day imprisonment term for the summary
offense and no further penalty for the misdemeanor accident conviction. N.T.
8/24/21, 3.
Appellant did not file a post-sentence motion or a timely notice of
appeal. Present defense counsel entered his appearance and filed a petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et
seq., seeking the reinstatement of Appellant’s direct appeal rights. Entry of
Appearance, 9/30/21, 1; PCRA Petition, 9/30/21, ¶ 5. Counsel acknowledged
that Appellant had mailed a request for a notice of appeal to his office on
September 21 and 23, 2021, but that he did not receive the request until after
the September 23rd deadline for filing a timely notice had elapsed. PCRA
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Petition, 9/30/21, ¶ 3-4. The lower court granted the request for
reinstatement of Appellant’s direct appeal rights and Appellant filed a notice
of appeal within thirty days.3 Order Granting PCRA Relief, 10/6/21, 1; Notice
of Appeal, 10/20/21, 1.
Appellant presents the following questions for our review:
I. Did the lower court err in admitting stipulations to chemical
testing results where [Appellant] acting as pro se counsel
refused to stipulate to the results and no stipulation had
been entered on the record prior to [Appellant] beginning to
represent himself in a pro se capacity?
II. Did the lower court err in denying [Appellant’s] request for
new counsel without first conducting an on-the-record
colloquy regarding the reasons for [Appellant’s]
dissatisfaction with counsel and also questioning counsel
regarding the adequacy of his preparation for trial?
Appellant’s Brief at 3 (answers of the lower court omitted).
In his first issue, Appellant asserts that the trial court erred by admitting
the stipulation concerning the chemical testing results. Appellant’s Brief at
11-12. He acknowledges that his trial counsel “came to an oral agreement”
with the Commonwealth to enter the stipulation but he asserts that, because
the stipulation had not been entered into the evidentiary record by presenting
it to the jury prior to him proceeding pro se, the court should have sustained
his objection. Id. When the court denied Appellant’s objection, it held that
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3Appellant also timely filed a court-ordered statement of matters complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Order, 10/20/21; Rule 1925(b)
Statement, 11/9/21.
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he was bound to honor the agreement that his counsel had made with the
Commonwealth concerning the entry of the stipulation. N.T. 3/12/20, 76
(“THE COURT: Mr. Andrews, while you were represented by counsel, these
stipulations were agreed to. You’re bound by them.”).
Appellant argues that the stipulation had “no validity” before it was
entered into the trial record. Appellant’s Brief at 11. The trial court considers
that the stipulation was made prior to trial and that it needed to be honored
where the Commonwealth relied on the agreement with defense counsel to its
detriment. Trial Op., 1/25/22, 6. In addition, the court advises that the
instant claim is moot where the jury was unable to reach a verdict on the
charges based on the evidence addressed in the stipulations. Id. Appellant
argues that the entry of the stipulation could not have been harmless because
evidence showing him to be in possession of illegal narcotics would have cast
him “in a negative light” and “invariably cause the jury to feel that they had
to convict [him] of something.” Appellant’s Brief at 12.
As this claim pertains to the admission of evidence, we review the record
for an abuse of discretion:
The admission of evidence is committed to the sound discretion of
the trial court, and a trial court’s ruling regarding the admission
of evidence will not be disturbed on appeal unless that ruling
reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous.
Commonwealth v. Gboko, 243 A.3d 247, 249 (Pa. Super. 2020) (citation
omitted).
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There does not appear to be any dispute that trial counsel, prior to
Appellant proceeding pro se, agreed to the stipulations at issue. N.T. 3/12/20,
76 (“THE COURT: It’s my understanding these stipulations were reached
between you and [trial counsel] prior to Mr. Andrews representing himself. Is
that accurate? [PROSECUTOR]: That’s correct, Your Honor.”).4 The United
States Supreme Court has held that there are numerous choices relating to
the conduct of trial, and, with respect to choices made by counsel regarding
the admission of evidence, the defendant is bound. See United States v.
Gonzalez, 553 U.S. 242, 248-49 (2008) (“decisions by counsel are generally
given effect as to … what agreements to conclude regarding the admission of
evidence”) (citation omitted).
At the core of his claim, Appellant is asserting that the agreement
between his former counsel and the Commonwealth could not be enforced
until it was “entered into the record.” Appellant’s Brief at 12. For this
proposition, he cites our decision in Appel Vending Co. v. 1601 Corp., 203
A.2d 812, 814 (Pa. Super. 1964), offering the following quotation: “an oral
agreement of counsel will not be considered by the court unless it is noted by
the prothonotary, or made in open court, or is admitted.” Appellant’s Brief at
11. Appellant’s quotation is misleading. He removed the following
emphasized portions from the quotation without giving this Court any context
that he was omitting any of its contents: “In any event an oral agreement of
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4Trial counsel, still present in court as standby counsel, did not contest this
point.
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counsel, such as is alleged by the garnishee, will not be considered by the
court unless it is noted by the prothonotary or made in open court (Pa.R.C.P.
No. 201) or is admitted.”5
The unedited quotation from the Appel Vending decision shows that,
in civil matters, courts are unable to consider an oral agreement between
counsel because of an applicable rule of civil procedure. See Pa.R.Civ.P. 201
(“Agreements of attorneys relating to the business of the court, shall be in
writing, except such agreements at bar as are noted by the prothonotary upon
the minutes or by the stenographer on the stenographer’s notes.”).6 By
misquoting Appel Vending, Appellant can be seen as covertly trying to rely
on a civil rule of procedure, which has no apparent counterpart in our criminal
rules of procedure, to prevail in this appeal in his criminal matter. His reliance
on a portion of Appel Vending applying Pa.R.Civ.P. 201 fails to the support
the central point of his argument in this criminal matter which is not governed
by the rules of civil procedure.7
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5 We note that attorneys in this Commonwealth have an obligation to not
knowingly make false statements of law to tribunals pursuant to Rule
3.3(a)(1) of our Rules of Professional Conduct.
6 The wording of the current version of Pa.R.Civ.P. 201 has essentially
remained the same as of the time of Appel Vending. See Britton v.
Continental Min. & Smelting Corp., 76 A.2d 625, 627 (Pa. 1950) (quoting
the rule and citing it as Pa.R.C.P. 201).
7 If we were to hypothetically apply Pa.R.Civ.P. 201 in these contexts,
Appellant does not address the fact that the agreed-upon stipulations were
ultimately included in a writing that was admitted at trial as Exhibit C-11.
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Appellant next cites our child custody decision in Commonwealth ex
rel. Patricia L. F. v. Malbert J. F., 420 A.2d 572, 573 n.2 (Pa. Super. 1980),
for the holding that “[i]t is [an] err[or] for a court to rely on [a] stipulation
that is not of record.” Appellant’s Brief at 12. Appellant’s reliance on that
opinion for the offered holding is also misleading. To the extent that it may
have been instructive for our review of the instant claim, it is inapposite
because it was addressing the fact that a court in the child-custody matter
erred by relying on an alleged stipulation that was both not of record and
which both parties contested the existence of the alleged stipulation. 420
A.2d at 573 n.2 (“Both parties contest the existence of that stipulation, and
indeed, no such stipulation appears on the record. Accordingly, the lower
court erred in relying on a stipulation not of record.”). Here, the parties do
not dispute that the Commonwealth and defense counsel had entered into an
agreement to enter the stipulation at issue. Accordingly, Appellant’s citation
to Commonwealth ex rel. Patricia L. F. V. Malbert J. F. does not establish
any misapplication of law in the instant case.8
Appellant’s remaining citations are also of little use for our review. He
cites Metropolitan Life Ins. Co. v. Bodge, 560 A.2d 175, 179 (Pa. Super.
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8 Additionally, the citation to Commonwealth ex rel. Patricia L. F. v.
Malbert J. F. has little persuasive value for the instant case because the
alleged stipulation addressed in the cited footnote involved a stipulation about
child custody and, in those matters in particular, courts are not bound by
contractual agreements between parties relating to child custody. See
Commonwealth ex rel. Veihdeffer v. Veihdeffer, 344 A.2d 613, 614
(1975).
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1989), for the holding that a trial court did not err in denying the admission
of a “Joint Stipulation of Facts” that was neither agreed to or signed by an
opposing party. Appellant’s Brief at 12. That holding is inapposite because
again there is no dispute in the instant matter that Appellant’s former counsel
agreed to the stipulation at issue. The relevant question is whether an
agreement made by a former attorney could bind a successor attorney, which
in this case was Appellant himself after he proceeded pro se. Appellant lastly
cites a non-controlling decision from another jurisdiction.
Appellant’s argument fails to demonstrate an abuse of discretion. He
does not provide this Court with any relevant controlling or persuasive
Pennsylvania caselaw to determine that the court below misapplied any law
or acted unreasonably. He does not point to, and we cannot locate, any
pertinent law which allows new counsel, here the Appellant acting pro se, to
disavow a stipulation agreement made by a former counsel concerning the
admission of evidence.
In any event, we see no basis to upset the trial court’s finding that prior
counsel’s stipulation agreement bound Appellant. “A stipulation is a
declaration that the fact agreed upon is proven.” Gboko, 243 A.3d at 249
(citation omitted). Here, the Commonwealth appeared to agree to the
stipulation to avoid the necessity of presenting an additional witness at trial
and trial counsel presumably agreed to the stipulation to avoid unnecessarily
focusing the jury’s attention to issues concerning the controlled substances
and drug paraphernalia that were recovered by the police in this case. The
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jury’s ultimate failure to reach a verdict on those charges was perhaps the
result of a strategy in those respects. The decision to enter the stipulation
agreement appears to have been in the realm of decisions that may be made
by counsel consistent with United States v. Gonzalez and which may bind
a defendant. The Commonwealth relied on that agreement and was ready to
rest its case-in-chief upon the entry of the agreed-upon stipulations. We do
not find that the trial court acted unreasonably by enforcing the stipulation
agreement when Appellant made a last-minute objection, possibly as a matter
of gamesmanship, after the Commonwealth’s detrimental reliance and
jeopardy had been attached.
In his second issue, Appellant claims that the trial court erred by not
conducting a proper colloquy of him and his attorney before the court denied
his request for the appointment of a new attorney, prior to the court permitting
him to proceed pro se. Appellant’s Brief at 13-16. He asserts that the court
should have conducted a colloquy to ascertain the source of his dissatisfaction
with his counsel and the adequacy of his counsel’s preparation for the trial.
Id. at 15.
Pa.R.Crim.P. 122(c) provides that “[a] motion for change of counsel by
a defendant for whom counsel has been appointed shall not be granted except
for substantial reasons.” “To satisfy this standard, a defendant must
demonstrate he has an irreconcilable difference with counsel that precludes
counsel from representing him.” Commonwealth v. Wright, 961 A.2d 119,
134 (Pa. 2008). A strained relationship with counsel, lack of faith in counsel’s
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abilities, or a difference of opinion in trial strategy do not necessarily evidence
irreconcilable difference. Commonwealth v. Floyd, 937 A.2d 494, 497-98,
500 (Pa. Super. 2007) (collecting cases; affirming finding that disagreement
in trial strategy and perceived deficits in counsel’s representation did not rise
to the level of irreconcilable differences).
Our Supreme Court has explained, “the right to appointed counsel does
not include the right to counsel of the defendant’s choice.” Commonwealth
v. Albrecht, 720 A.2d 693, 709 (Pa. 1998). “Whether a motion for change
of counsel should be granted is within the sound discretion of the trial court
and will not be disturbed on appeal absent abuse of discretion.”
Commonwealth v. Cook, 952 A.2d 594, 617 (Pa. 2008) (citation omitted).
To demonstrate that the trial court supposedly conducted inadequate
review before the denial of his request for a change of counsel, Appellant cites
factors to be considered when a defendant seeks a continuance for the
purpose of obtaining new private counsel. Appellant’s Brief at 13-14, citing
Commonwealth v. Prysock, 972 A.2d 539 (Pa. Super. 2009). In the instant
case, there was no issue raised suggesting that Appellant wished to replace
his appointed counsel with retained counsel. The situation presented below
was that Appellant expressed dissatisfaction with his appointed counsel and
the court rejected the notion that Appellant had a free option of appointed
counsel of his choosing. N.T. 3/12/20, 27 (“THE COURT: You’ve indicated to
me that the attorney that has been appointed for you is not an attorney you
want. And that’s your decision to make, but you’re not entitled to pick and
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choose who you want.). As a result, Appellant’s reliance on Prysock is
misplaced.
Here, the only relevant question when defendant posed requests to the
trial court for a new attorney was whether he had “substantial reasons”
pursuant Pa.R.Crim.P. 122(c). Under Wright, supra, that meant that
Appellant needed to demonstrate irreconcilable differences with his appointed
counsel. 961 A.2d at 134. Review of his request did not necessarily require
a separate hearing. See, e.g., Commonwealth v. Keaton, 45 A.3d 1050,
1071 (Pa. 2012) (“Neither the Rules of Criminal Procedure nor our case law
requires a defendant be afforded a hearing every time he requests a change
of counsel, and we decline to impose such a requirement.”). The court was
merely required to gather some input from Appellant and his counsel to
ascertain whether irreconcilable differences had developed. Id. (noting that
a trial court was justified in denying a capital murder defendant’s motion for
a change of court-appointed counsel without an evidentiary hearing where the
court, after hearing Keaton’s reasons for wanting different counsel and hearing
counsel’s side of the issue, concluded that Keaton and his counsel disliked
working together but that there was no reason that counsel was incapable of
zealously representing Keaton; referring to a lack of an abuse of discretion
with respect to the court “summarily denying” Keaton’s request).
Our review of the record demonstrates that the trial court was aware of
the basis for Appellant’s dissatisfaction with his appointed counsel. The basis
for Appellant’s concern and distrust was that he believed that his attorney had
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withdrawn a suppression motion concerning the recovery of an additional
controlled substance on his person at the time of the car stop without
consulting with him. N.T. 3/12/20, 18-19 (Appellant: “On the record, I didn’t
know that I was given -- with the suppression hearing, I didn’t know that my
suppression [motion] was waived. I didn’t know what. I didn’t make that
agreement. That’s what I’m saying. Seeing him representing me -- you all
made an agreement without me even noticing. I didn’t know knowing about
that … I would like to have my suppression hearing. I never waived that. I
never agreed to that.”). What transpired was that counsel only withdrew his
suppression motion when it became moot after the Commonwealth withdrew
the drug possession charge related to the evidence addressed in the motion.
N.T. 3/11/20, 75 (trial court’s explanation of those circumstances); 3/12/20,
21 (the court recalling the circumstances of the withdrawal of the suppression
motion). Moreover, the court heard from counsel about his view that there
had been a “breakdown in [his] relationship” with Appellant and a lack of
Appellant trusting him. N.T. 3/11/20, 12.
Appellant claims that the trial court “failed to conduct any examination
of trial counsel regarding the source of [his] satisfaction, whether it could be
reconciled, and the degree of trial counsel’s preparation for trial,” Appellant’s
Brief at 15, however, the record plainly shows that the source of his distrust
was his confused impression that his counsel had withdrawn a suppression
motion without consulting with him. There was no reason for the court to
colloquy appointed counsel on the source of the dissatisfaction because
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Appellant had already made that clear. N.T. 3/12/20, 18-19; see also id. at
22 (Appellant: “I don’t want this man sitting here misrepresenting me. We’re
not even on the same page. He’s making decisions about my life without me
even knowing it.”) (emphasis added); id. at 25 (Appellant, with respect to a
reason for the appointment of a new attorney: “I’ve given you a reason. This
man sat here and made a decision about my life without me even knowing
about it. That’s enough of a reason. There was a motion being done. And
because you all made an agreement -- them two made an agreement. I
wasn’t aware of that. You think I would have agreed to that?).
To the extent that Appellant expressed his concern about the withdrawn
suppression motion, we do not see any reason why the trial court should have
then conducted a colloquy with appointed counsel about his preparation for
the trial: the stated basis for the dissatisfaction had to do with the withdrawal
of a pre-trial suppression motion and had nothing to do with any issue
concerning counsel’s preparation for the trial. Additionally, there was nothing
to reconcile about the withdrawal of the pre-trial motion because it was only
withdrawn when it became moot and the trial court already explained those
circumstances. See N.T. 3/11/20, 75. Appellant did not accept that
explanation and that formed the basis for his request for new counsel and his
eventual request to proceed pro se. See N.T. 3/12/20, 29 (Appellant: “If I’m
representing myself, I want to have my suppression … Who withdrew it? I did
not withdraw my motion.”).
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In these circumstances, we cannot conclude that the trial court abused
its discretion either in the manner in which it considered Appellant’s request
for new appointed counsel or its denial of the request. The record shows that,
in multiple moments during the trial, the court patiently tried to allow
Appellant to explain his dissatisfaction with his attorney. Appellant’s
responses show that he was fixated on the withdrawal of a pre-trial
suppression motion even though the motion was only withdrawn because it
became moot. Regardless of how the court ruled on Appellant’s request for
new counsel, the court could not have halted the trial to do anything about
the pre-trial suppression motion. While Appellant experienced distrust with
his counsel from his misunderstanding of the reason for the withdrawal of his
suppression motion, the court obviously did not undertake any additional
colloquies during the consideration of the request for new counsel because
they did not reveal an irreconcilable difference where Appellant’s concerns had
nothing to do with counsel’s performance or ability to zealously represent
Appellant during the trial. See Commonwealth v. Knapp, 542 A.2d 546,
549 (Pa. Super. 1988) (indicating that counsel may be rejected only for “good
cause shown,” and that Knapp failed to establish good cause by merely
alleging that his relationship with appointed counsel was “strained”);
Commonwealth v. Johnson, 454 A.2d 1111, 1115-16 (Pa. Super. 1982)
(concluding Johnson was not entitled to new counsel where he merely alleged
that he lacked confidence in appointed counsel and did not like counsel’s
attitude or the manner in which counsel spoke to him).
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J-A17042-22
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2022
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