Com. v. Deavers, K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH WAYNE DEAVERS :
:
Appellant : No. 506 MDA 2019
Appeal from the Judgment of Sentence Entered February 5, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002508-2018
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 22, 2020
Appellant, Kenneth Wayne Deavers, appeals from the judgment of
sentence entered after he was convicted of resisting arrest, public
drunkenness, disorderly conduct, and failure of disorderly persons to disperse
upon official order.1 For the reasons that follow, we reverse the conviction for
failure of disorderly persons to disperse upon official order, vacate the
judgment of sentence, and remand for a new trial on the charges of resisting
arrest, public drunkenness, and disorderly conduct.
In its opinion, the trial court set forth the relevant facts and procedural
history of this matter as follows:
On November 22, 2017, multiple officers were assigned to
work on Second Street for bar closings. (Notes of the Testimony,
29). As it was the night before Thanksgiving, the area around
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1 18 Pa.C.S. §§ 5104, 5505, 5503(a)(4), and 5502, respectively.
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Second Street was very busy. (N.T., 29). The Commonwealth in
presenting its case relied primarily on the testimony of Officer
Anthony Fiore. (N.T., 25). Officer Fiore was stationed outside of
Sawyer’s Bar with Agent Jed Chittum. (N.T., 29-30). The duties of
the officers stationed in the area were for the purposes of crowd
control. (N.T., 30-31). Officer Fiore indicated that police presence
is a necessity because patrons who are exiting the bars will block
sidewalks, roadways, and passageways which can be dangerous
if there is an emergency and vehicles cannot get through the area.
(N.T., 31) On that evening in particular, Officer Fiore indicated
that the volume of pedestrians was so large that the roadways
near Sawyer’s on Second Street [were] shut down. (N.T., 31).
At approximately 2:15 a.m. on November 23, 2018,
Sawyer’s began to close and the staff at Sawyer’s were actively
trying to get people to exit the bar. (N.T., 32). Officer Fiore
indicated that normally he and other officers would allow the
patrons to congregate outside of the bars and wait for their
friends, however, on this particular night they did not because
people were spilling into the street. (N.T., 33). He estimated that
there [were] a “couple hundred” people standing outside of
Sawyer’s on that night. (N.T., 33). Between 2:20 and 2:25 a.m.
the stationed officers g[o]t an order to start moving people along.
(N.T., 33).
At some point, Officer Fiore encounters [Appellant]. (N.T.,
35). He described that [Appellant] walked towards him as Officer
Fiore walked towards the crowd. Id. He gave [Appellant] the
direction to continue walking in the same direction that he was
giving to everyone else and [Appellant] stared at the officer. (N.T.,
36). Officer Fiore repeated himself believing that [Appellant] was
unable to hear him. Id. Again, [Appellant] looked at Officer Fiore
without any acknowledgement as to the direction Officer Fiore
gave to him. (N.T., 36). [Appellant] moves closer towards Officer
Fiore and states to him “you don’t have to play the f**king violin
for me, bro.” Id. Officer Fiore reiterates to [Appellant] that he has
to leave the area. (N.T., 37). At this point, Officer Fiore believes
that [Appellant] was intoxicated because he had the odor of
alcohol on him. (N.T., 37-38). Again, Officer Fiore gave
[Appellant] another instruction to continue walking north. (N.T.,
38). [Appellant] told Officer Fiore that he would not continue
walking north because his car was parked in the opposite
direction. Id. Officer Fiore again told [Appellant] that he cannot
walk south and put his hand out in front of him and placed it on
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[Appellant’s] chest. (N.T., 38-39). [Appellant] responded by
slightly pushing Officer Fiore back. Id. Officer Fiore described that
he “took a couple steps” with [Appellant] and told him to continue
north. (N.T., 38-39). Again, [Appellant] stated that he did not
want to go in that direction and swatted Officer Fiore’s arm from
his chest. Id. Officer Fiore stated that he made a “split-second
decision” to grab [Appellant] by his coat and take him to the
ground. (N.T., 39-41). As soon as both Officer Fiore and
[Appellant] hit the ground, Officer Fiore rolled off of [Appellant].
(N.T., 41). Next, Officer Fiore and Agent Chittum attempt to gain
control of [Appellant] by rolling him over. Id. Officers gave
multiple commands to [Appellant] to stop resisting. (N.T., 41).
Eventually, Officers are able to subdue [Appellant], however, it
took several officers to do so. Id. At that point in time, Officer
Fiore puts [Appellant] in handcuffs and assists him to his feet.
(N.T., 43). [Appellant] is informed by Officers that he is under
arrest, and he is escorted to stand in front of Officer Fiore’s
vehicle. (N.T., 43-44). Officer Fiore further indicated that once
arrested, [Appellant] was screaming that this was police brutality
and asking for people to record the events. (N.T., 44). [Appellant]
is transported to the booking center, where he was held for
several hours due [to] the public drunkenness citation. (N.T., 46-
47). After being held for several hours, [Appellant] was released.
Id.
Deputy Josh Pierce also testified that he was serving on the
bar closure detail on the morning of November 23, 2018. (N.T.,
76). Deputy Pierce testified that he had seen the situation occur
between Officer Fiore and [Appellant]. (N.T., 78). Deputy Pierce’s
description of the incident was almost identical …. Id. Deputy
Pierce [assisted] Officer Fiore and Agent Chittum. (N.T., 79).
During the struggle with [Appellant], Deputy Pierce gave him
three (3) warnings that he would be tased if he did not comply
with the officer’s orders. Id. [Appellant] did not comply and
Deputy Pierce tased him. (N.T., 79).
Trial Court Opinion, 6/3/19, at 2-4 (footnote omitted).
As noted, the Commonwealth charged Appellant with resisting arrest,
public drunkenness, disorderly conduct, and failure of disorderly persons to
disperse upon official order. Criminal Information, 11/23/17. The case
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proceeded to trial on November 20, 2018. Appellant appeared at trial without
counsel, and he requested to represent himself. N.T. (Trial), 11/20/18, at 5.
The trial court conducted a colloquy to determine whether Appellant was
knowingly, intelligently, and voluntarily waiving his right to counsel. Id. at 5-
10. After the colloquy, the trial court permitted Appellant to represent himself,
and Appellant waived his right to a jury trial. Id. at 9-10. At the conclusion
of the trial, Appellant was found guilty on all counts. Id. at 110.
On February 5, 2019, the trial court sentenced Appellant to two years
of probation for resisting arrest and for failure of disorderly persons to disperse
upon official order. N.T. (Sentencing), 2/5/19, at 8-9. The court ordered the
sentences to run concurrently. Id. The trial court imposed no further
sentence on the remaining counts.2 Id. This resulted in an aggregate
sentence of two years of probation.
On February 14, 2019, Appellant filed a pro se post-sentence motion.
On February 26, 2019, Attorney James J. Karl entered his appearance on
behalf of Appellant. On March 4, 2019, the trial court denied Appellant’s post-
sentence motion, and this timely appeal followed. Both the trial court and
Appellant complied with Pa.R.A.P. 1925.
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2The crimes of resisting arrest and failure of disorderly persons to disperse
upon official order were graded as misdemeanors of the second degree, and
public drunkenness and disorderly conduct were graded as summary offenses.
N.T. (Sentencing) 2/5/19, at 2.
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On appeal, Appellant presents the following issues for this Court’s
consideration:
I. Did not the lower court fail to insure that [Appellant’s] waiver
of his right to counsel was knowing, voluntary, and intelligent
when the court in its colloquy failed to comply with the minimum
standards set forth in Pa.R.Crim.P. 121(A)(2)?
II. Was not the evidence insufficient to sustain a conviction for
“failure of disorderly persons to disperse upon official order” at 18
Pa.C.S. §5502 when the order to disperse was not preceded by
the commission of disorderly conduct of three or more persons as
required under the statute?
Appellant’s Brief at 5 (full capitalization omitted).
In his first issue, Appellant assails the validity of his waiver of his right
to counsel. Appellant’s Brief at 10. We review this issue bearing in mind the
following precepts:
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. Both the right to counsel and the right to self-
representation are guaranteed by the Sixth Amendment to the
United States Constitution and by Article I, Section Nine of the
Pennsylvania Constitution. Deprivation of these rights can never
be harmless. Courts indulge every reasonable presumption
against waiver of fundamental constitutional rights and that we do
not presume acquiescence in the loss of fundamental rights. A
waiver is ordinarily an intentional relinquishment or abandonment
of a known right or privilege.
Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa. Super. 2017) (internal
citations and quotation marks omitted). “In order to make a knowing and
intelligent waiver, the individual must be aware of both the nature of the right
and the risks and consequences of forfeiting it.” Id. (citation omitted).
Failing to conduct an on-the-record colloquy pursuant to Pa.R.Crim.P. 121(C)
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before allowing a defendant to proceed pro se constitutes reversible error. Id.
at 121-122. Additionally, Pa.R.Crim.P. 121(A) provides:
(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.Crim.P. 121(A)(2).
The record reveals the following exchange relevant to Appellant’s waiver
of his right to counsel:
THE COURT: All right.
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[CHIEF DEPUTY DISTRICT] ATTORNEY CANAVAN: Your Honor, this
is the time and date set for a bench trial on this matter.
[Appellant] is present representing himself. … Do you want
to approach?
[APPELLANT]: Sure.
THE COURT: Let’s have [Appellant] sworn in, please.
COURTROOM CLERK: You need to raise your right hand. Do you
swear or affirm testimony you’re about to give this
Honorable Court will be the truth, the --
[APPELLANT]: Um, I reserve the right to not have to make
testimony.
THE COURT: I’m just going to verify that you’re representing
yourself and you don’t want an attorney to represent you.
[APPELLANT]: Oh, yeah. I’m fine representing myself.
THE COURT: Okay. State your name for the record.
[APPELLANT]: Um, the name is I’ve been told for 28 years is
Kenneth William[3] Deavers, Jr.
THE COURT: And how old are you?
[APPELLANT]: I am 28 years old.
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3 The notes of testimony reflect Appellant stated that his name is Kenneth
William Deavers, Jr. N.T. (Trial), 11/20/18, at 4. However, throughout the
certified record, specifically in the documents filed pro se, Appellant identifies
himself as Kenneth Wayne Deavers, Jr. [Appellant’s pro se] Motion to
Suppress Alleged Statements and Strike Partial Testimony in the Evidence,
11/14/18; [Appellant’s pro se] Motion to Video Record Proceedings, 11/14/18;
[Appellant’s pro se] Motion to Strike/Dismiss, Nullify Judgement, and Request
for Full Finding of Fact and Conclusions of Law, 2/14/19. Because the
November 20, 2018 proceeding appears to be the only time Appellant’s middle
name was recorded as William, this may have been an uncharacteristic error
by the court reporter or an intentional or accidental misstatement by
Appellant. Because the vast majority of documents identify Appellant as
Kenneth Wayne Deavers, Jr., that is the name we utilize in this Memorandum.
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THE COURT: How far did you go in school?
[APPELLANT]: I attended college for nearly two years.
THE COURT: All right. So you graduated. You read, write, and
understand the English language?
[APPELLANT]: Yes.
THE COURT: Do you understand what I’m saying here today?
[APPELLANT]: Yes.
THE COURT: And you’re in here today representing yourself. And
I believe this is a misdemeanor of the second degree?
ATTORNEY CANAVAN: Two second degree misdemeanors, two
summary offenses. It’s resisting arrest, failure to disperse
upon official order, which are the misdemeanors; public
drunkenness and disorderly conduct are the summaries.
THE COURT: And you understand with a misdemeanor of the
second degree there’s a maximum of up to two years of
incarceration and a $5,000 fine on each one of those? And
because they’re misdemeanors of the second degree, you’re
entitled to counsel. And if you cannot afford counsel, one
would be granted to you. Do you understand that?
[APPELLANT]: Um, yes, I understand that. However, I would like
to state that I have -- I feel as though it’s in my best interest
to represent myself because I cannot afford private counsel.
And if I were to have the free counsel provided that would
be supplied to me by the state, which is the same people
who are prosecuting me, so to me it seems like a conflict of
interest. So that’s why I’ve choosen -- chosen to do it
myself. And I also feel confident to speak for myself.
THE COURT: That’s fine. And I’m more than happy to let you
represent yourself. I just need to go through a series of
questions to make that determination. So you understand
the maximum penalties that could be imposed against you?
[APPELLANT]: I understand that, yes.
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THE COURT : And you’re -- So once I understand you don’t want
anyone to represent you and that you want to represent
yourself at the same level as somebody who did seven years
of higher education and passed the Commonwealth’s
licensing to be here. Do you understand that? So you’re
going to be held at that same standard.
[APPELLANT]: Yep.
THE COURT: Do you understand that? So there may be issues or
defenses or things that you may not be aware of that if not
raised will be lost for you forever because you’re
representing yourself.
[APPELLANT]: Well, I always have a right to appeal; is that
correct?
THE COURT: Absolutely.
[APPELLANT]: And I can appeal on --
THE COURT: But there may be issues that because you didn’t raise
them will not be appealable because you’re representing
yourself and are not familiar with some of the rules and
issues that could be brought.
[APPELLANT]: Um, okay, well, I -
THE COURT: Can you stand straight and put your hands to your
side. It makes me very nervous when somebody has their
hands --
[APPELLANT]: Sure.
THE COURT: All right, so you understand all that? You understand
that there may be issues lost to you because you’re
representing yourself?
[APPELLANT]: What kind of issues?
THE COURT: Defensible issues, issues that you didn’t bring,
objections that are not brought because you’re not familiar
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with the laws. By representing yourself, you’re putting
yourself in a position where --
[APPELLANT]: I’m pretty --
THE COURT: -- I’m not going to assist you. You have to be familiar
with --
[APPELLANT]: I’m pretty familiar with the laws -- the charges that
are being brought against me.
THE COURT: Okay. Well, I’m just making it very clear that if there
are not proper objections, if there are not proper statements
that you may lose issues because they’re not brought up
properly.
[APPELLANT]: Okay.
THE COURT: All right.
[APPELLANT]: Um --
THE COURT: And you’re doing this because you’re voluntarily,
knowingly, and intelligently representing yourself in this
matter?
[APPELLANT]: Yes.
THE COURT: Okay.
[APPELLANT]: Um, I don’t know that our -- um, our issue of my
right to record has, uh, been resolved.
THE COURT: Well, that is going to be denied because there is no
recordings of the courtroom. There is no videotaping of the
courtroom proceedings in Pennsylvania.
[APPELLANT]: Did you have a chance to read my motions?
THE COURT: I’m not allowing it. Okay, so that’s going to be
denied. All right.
[APPELLANT]: I just want --
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THE COURT: Now, you also have the right to a jury trial where 12
members from the Dauphin County community would be
selected and listen to the facts of this case and render a
decision on your guilt or innocence.
The Commonwealth would have to prove your guilt beyond
a reasonable doubt. You would not have to testify nor
present any evidence on your own behalf.
It looks like this was listed for a bench trial but I want to
make it very clear that I will be the only one listening to the
evidence and making a decision if you decide not to go to a
jury trial.
So you have voluntarily, knowingly, and intelligently made
up your mind that you would prefer to have one person
listen to the evidence as opposed to 12 members from the
Dauphin County community?
[APPELLANT]: I would rather have one person who knows the
laws, yes. However, I would like to state on the record that
I don’t agree with the denial of the --
THE COURT: Well, then, I’ll note that objection so that you do
have an appealable issue.
[APPELLANT]: City of Philadelphia -- Fields versus City of
Philadelphia they said that we always have right to record
police officers doing their duties in a public place. This is a
public courtroom and there are police officers in this
courtroom.
THE COURT: Okay, well, I’ll still deny it. So you can appeal that
to any Superior Court you want.
All right, so with the denial of you denying the right -- your
right to have a jury trial so you’re asking me to listen to the
facts and render a decision based on the evidence. You
would not have to testify. You would not have to present
any evidence on your own behalf. It would be my decision
based on the Commonwealth’s presentation.
[APPELLANT]: Well, I do have some evidence.
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THE COURT: Well, and you’re allowed to put -- I’m just saying
that you don’t -- under the Constitution you don’t have to
present anything, that they have to prove you guilty beyond
a reasonable doubt. You understand all that?
[APPELLANT]: Yes.
THE COURT: Any questions?
[APPELLANT]: No.
THE COURT: All right. I’m going to have him sign the back of the
form indicating that he understood the rights and that he is
voluntarily waiving those rights and proceeding with a bench
trial.
[APPELLANT]: Would it make more sense for me to bring my
paperwork and step up here?
THE COURT: No. I’m going to let you go back there because the
Commonwealth has to go first anyway so I’d rather have
you sit.
All right, Mr. Canavan, you’re ready to proceed[.]
N.T. (Trial), 11/20/18, at 3-10.
The notes of testimony reflect that the trial court informed Appellant:
he has a right to counsel; he has a right to have counsel appointed if he is
indigent; he is bound by the court rules of procedure and counsel would be
familiar with these rules; there is a possibility that counsel may be aware of
certain defenses and some defense may be lost if not raised; and several
rights, if not timely asserted, may be lost permanently. Therefore, we
conclude that the requirements set forth in Pa.R.Crim.P. 121(A)(2)(a), (d),
(e), and (f), were satisfied.
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However, it is apparent that the trial court did not inform Appellant of
the elements of the charges against him or the range of permissible sentences
available on each criminal charge.4 Consequently, the requirements of
Pa.R.Crim.P. 121(A)(2)(b) and (c) were not satisfied in the colloquy. Thus,
we are constrained to vacate Appellant’s judgment of sentence and remand
for a new trial. See Commonwealth v. Houtz, 856 A.2d 119, 130 (Pa.
Super. 2004) (concluding that a new trial was required where the trial court
did not ensure appellant understood the nature and elements of the charges
and the range of penalties the court could impose).
Next, Appellant avers that the evidence was insufficient to establish the
crime of failure of disorderly persons to disperse upon official order pursuant
to 18 Pa.C.S. § 5502. Appellant’s Brief at 14. Although we have concluded
that we are required to vacate Appellant’s judgment of sentence and remand
for a new trial, “[t]he reason for this further analysis is that where the issue
presents a challenge to the sufficiency of the evidence, a retrial on this offense
would be precluded in the event the issue has merit.” Commonwealth v.
Phillips, 93 A.3d 847, 855 (Pa. Super. 2014) (citation omitted); see also
Commonwealth v. Jordan, 212 A.3d 91, 94 (Pa. Super. 2019) (a successful
challenge to the sufficiency of the evidence results in discharge). Accordingly,
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4Although the trial court stated the maximum fine and sentence permitted for
a misdemeanor of the second degree, N.T. (Trial), 11/20/18, at 5, the court
did not provide the range of sentences available for the misdemeanors, and it
did not mention the fines or penalties available for the summary offenses.
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we address Appellant’s challenge to the sufficiency of the evidence with
respect to failure of disorderly persons to disperse upon official order.
Our standard and scope of review are well settled. A determination of
evidentiary sufficiency presents a question of law, and our standard of review
is de novo and our scope of review is plenary. Commonwealth v. Baker,
201 A.3d 791, 795 (Pa. Super. 2018) (citation omitted).
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, viewed in the light most favorable to
the Commonwealth as verdict winner, were sufficient to prove
every element of the offense beyond a reasonable doubt. The
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Id. (internal citations, quotation marks, and brackets omitted).
This was a bench trial, and the trial court served as the factfinder.
“[T]he finder of fact, while passing upon the credibility of witnesses and the
weight of the evidence produced is free to believe all, part or none of the
evidence.” Commonwealth v. Davison, 177 A.3d 955, 957 (Pa. Super.
2018) (citation omitted).
The crime of failure of disorderly persons to disperse upon official order
is defined as follows:
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Where three or more persons are participating in a course of
disorderly conduct which causes or may reasonably be expected
to cause substantial harm or serious inconvenience, annoyance or
alarm, a peace officer or other public servant engaged in
executing or enforcing the law may order the participants and
others in the immediate vicinity to disperse. A person who refuses
or knowingly fails to obey such an order commits a misdemeanor
of the second degree.
18 Pa.C.S. § 5502. A person is guilty of disorderly conduct if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous
behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any
act which serves no legitimate purpose of the actor.
18 Pa.C.S. § 5503(a). After review, we conclude that the Commonwealth
presented no evidence that there were “three or more persons . . .
participating in a course of disorderly conduct.” 18 Pa.C.S. § 5502.
Although the testimony adduced at trial demonstrated that there was a
crowd of hundreds present on the street outside of Sawyer’s Bar on the night
in question, there was no testimony that anyone other than Appellant, who
was by himself at the time Officer Fiore encountered him, engaged in
disorderly conduct. To the contrary, Officer Fiore testified as follows:
Q: Again, up until you encounter the defendant, were the people
generally responsive to your requests to disperse?
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A: Yep. They just kept walking.
N.T. Trial, 11/20/18, at 35. There were no incidents of disorderly conduct
committed by anyone other than Appellant. Indeed, Officer Fiore testified that
the evening had been quiet:
Q. And prior to the incident that happened after the closing of
Sawyer’s, can you tell Judge Curcillo, was it a bad night, [were]
there fights that you had to deal with, unruly patrons, or was it
kind of a regular night?
A. It was a good night.
Q. So not—Do you recall—
A. The radio was quiet.
Q. So you don’t recall yourself making any arrests prior to that
this night?
A. I did not.
Q. And you didn’t hear on the radio anyone else making arrests
prior to this?
A. No, sir.
N.T. (Trial), 11/20/18, at 30.
Even when viewed in the light most favorable to the Commonwealth, we
conclude there was insufficient evidence that anyone other than Appellant
engaged in disorderly conduct. This necessitates our conclusion that the
Commonwealth failed to establish that there were “three or more persons …
participating in a course of disorderly conduct.” 18 Pa.C.S. § 5502.
Accordingly, we reverse Appellant’s conviction for failure of disorderly persons
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to disperse upon official order, vacate the judgment of sentence on that count
of the Criminal Information, and discharge Appellant on that count as well.
Judgment of sentence vacated. Conviction for failure of disorderly
persons to disperse upon official order reversed and Appellant discharged on
that count. Case remanded for a new trial on the charges of resisting arrest,
public drunkenness, and disorderly conduct. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/22/2020
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