Com. v. Moses, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAWN T. MOSES :
:
Appellant : No. 2597 EDA 2019
Appeal from the judgment of sentence entered August 10, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0010562-2012.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 6, 2020
Shawn T. Moses appeals from the judgment of sentence imposed
following his conviction of robbery, aggravated assault, possession of an
instrument of crime (“PIC”), and simple assault.1 We affirm.
The trial court summarized the relevant factual history as follows:
On August 15, 2012, Brian Atkerson was at his home at
about 9:15 [a.m.], along with his children and their mother,
Freweini “Mimi” Goitom. [Moses] appeared at the door and
Atkerson went outside to speak with him. Atkerson had known
[Moses] for approximately 30 years. Prior to this date, [Moses]
had contacted Atkerson several times in an effort to retrieve some
money and property [Moses] believed he had lost while living with
Atkerson’s cousin.
Outside, [Moses] said to Atkerson: “Reason I’m here today
is because you had X amount of time to give me some money and
you choose not to give me the money. So, basically, today is the
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2702(a), 3701(a)(1), 907(a), 2701(a).
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day it’s going down.” When Atkerson asked what he was talking
about, [Moses] lifted his shirt to display a black Glock handgun in
his waistband and said: “I got the gat on me.” [Moses] then
pointed the gun at Atkerson’s midsection. Atkerson recognized
the gun from having seen it in [Moses’] possession on prior
occasions. Atkerson told [Moses] to leave, to which he responded
that he had text messages saying Atkerson had taken [Moses’]
property. When Atkerson went to look at the phone, [Moses]
struck Atkerson on his ear with the gun. [Moses] hit Atkerson
several more times, including the right eye, as Atkerson fended
him off.
At some point, Mimi Goitom opened the window, saw what
was going on and told [Moses] he needed to go because she was
going to call the police. [Moses] then broke off the struggle and
started to walk up the street. When the police responded to the
call from Mimi Goitom, Atkerson told them what had happened
and described [Moses].
[Moses] was stopped by police, but no gun was recovered.
As a result of being struck by [Moses], Atkerson had a black
eye and bruises on his ear.
Trial Court Opinion, 2/12/19, at 2-3 (citations to the record omitted).
Moses was arrested and charged with robbery, aggravated assault, PIC,
simple assault, and related offenses. Moses was appointed numerous court-
appointed counsel and public defenders, and was dissatisfied with the
representation provided by each of them. Moses thereafter sought leave to
proceed pro se with standby counsel. The trial court undertook a colloquy on
the record to determine Moses’ understanding of the rights he was giving up
by waiving counsel, the risks associated with proceeding pro se, and the
voluntariness of his decision to do so. Ultimately, because Moses convinced
the trial court that his decision to represent himself at trial was knowing,
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voluntary and intelligent, the court granted his request to proceed pro se with
standby counsel.
The matter then proceeded to a jury trial. During cross-examination,
Moses attempted to question Atkerson regarding text messages that Atkerson
exchanged with Moses’ mother, Ms. Moss. Atkerson admitted that he had sent
her text messages, but could not recall the substance of the text messages.
The Commonwealth objected to any questioning regarding the content of the
text messages because they had not been provided to the Commonwealth.
The trial court ruled that the text messages were irrelevant, and precluded
their admission. At the close of the Commonwealth’s case, Moses represented
to the trial court that he intended to call Ms. Moss as a witness. The trial court
initially stated that it would receive her testimony; however, the trial court
later reversed that ruling because Moses’ only purpose in calling Ms. Moss was
to have her testify about the text messages.
Moses also represented to the trial court that he wished to testify on his
own behalf. The trial court conducted a colloquy regarding his testimonial
rights, after which Moses was undecided about testifying. The trial court
instructed Moses to consider the matter overnight, and to speak with standby
counsel regarding his decision. The next day, Moses informed the trial court
that he had changed his mind, and did not wish to testify. At the conclusion
of trial, the jury convicted Moses of the above-noted offenses.
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On August 10, 2018, the trial court imposed an aggregate prison
sentence of six to fifteen years. Moses filed timely post-sentence motions
which the trial court denied. Moses filed a timely notice of appeal. Both Moses
and the trial court complied with Pa.R.A.P. 1925. However, the appeal was
dismissed for Moses’ failure to file an appellate brief. Moses filed a timely
petition pursuant to the Post Conviction Relief Act (“PCRA”)2 seeking to
reinstate his direct appeal rights. On August 30, 2019, the PCRA court
reinstated Moses’ direct appeal rights nunc pro tunc. On September 9, 2019,
Moses filed a timely notice of appeal.3
Moses raises the following issues for our review:
1. Did [Moses] waive his right to counsel knowingly, intelligently,
and voluntarily pursuant to his Sixth Amendment right to
counsel under the United States Constitution and under Article
1, Section 9 of the Pennsylvania Constitution?
2. Did the honorable trial court err by precluding [Moses] from
introducing evidence of [Atkerson’s] text messages exchanged
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2 See 42 Pa.C.S.A. §§ 9541-9546.
3 In his September 9, 2019 notice of appeal, Moses purports to appeal from
the August 30, 2019 PCRA order reinstating his direct appeal rights nunc pro
tunc. This is technically incorrect, as his nunc pro tunc appeal properly lies
from the August 10, 2018 judgment of sentence. However, as Moses’ appeal
was timely filed, the parties have proceeded as if he appealed from the
judgment of sentence, and foreclosing review on the basis of this procedural
misstep would likely result in further proceedings reinstating Moses’ right to
file an appeal from the judgment of sentence nunc pro tunc, we treat his
appeal from the PCRA court’s order as one from the judgment of sentence.
See Commonwealth v. Walter, 119 A.3d 255, 258 n.1 (Pa. 2015); see also
Pa.R.A.P. 105(a) (permitting appellate courts to disregard the Rules of
Appellate Procedure for good cause or in the interest of judicial efficiency).
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by and between [Atkerson] and [Ms. Moss] at the trial of
[Moses’] case?
3. Did the honorable trial court err by precluding defense witness,
. . . Ms. Moss . . . from testifying at trial in support of [Moses’]
defense?
4. Did [Moses] make a knowing, intelligent and/or voluntary
waiver of his right to refrain from testifying at the trial of his
case?
Moses’ Brief at 4-5.
In his first issue, Moses contends the trial court erred by permitting him
to proceed pro se because he did not knowingly, intelligently, or voluntarily
waive his right to trial counsel. Our review of this issue is guided by the
following principles.
The right to counsel is guaranteed by the Sixth Amendment
to the United States Constitution and Article V, Section 9 of the
Pennsylvania Constitution. 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 Pa.R.Crim.P. 121 and for determining whether the
defendant is indeed making an informed and independent decision
to waive counsel. Specifically, it is incumbent on the court to fully
advise the accused of the nature and elements of the crime before
accepting waiver of counsel. A penetrating and comprehensive
colloquy is mandatory, regardless of the defendant’s experience
with the system. Failure to conduct a thorough, on-the-record
colloquy before allowing a defendant to proceed to trial pro se
constitutes reversible error on direct appeal.
Commonwealth v. Isaac, 205 A.3d 358, 363 (Pa. Super. 2019) (internal
citations, brackets, and quotation marks omitted).
When a defendant desires to represent himself, he must petition the
court and the court must follow the appropriate legal procedure for securing
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a valid waiver of counsel. See Commonwealth v. McDonough, 812 A.2d
504, 506 (Pa. 2002). Pennsylvania Rule of Criminal Procedure 121 sets forth
the procedure a judge must follow to determine whether the waiver of counsel
was made knowingly, voluntarily and intelligently. Rule 121 provides, in
relevant part, as follows:
(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
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and are not timely objected to, or otherwise timely raised
by the defendant, these errors may be lost permanently.
****
(C) Proceedings Before a Judge. When the defendant seeks to waive
the right to counsel after the preliminary hearing, the judge shall
ascertain from the defendant, on the record, whether this is a knowing,
voluntary, and intelligent waiver of counsel.
(D) Standby Counsel. When the defendant’s waiver of counsel is
accepted, standby counsel may be appointed for the defendant.
Standby counsel shall attend the proceedings and shall be available to
the defendant for consultation and advice.
Pa.R.Crim.P. 121(A)(1), (2), (C), (D). In addition to these factors, a waiver
colloquy must contain a clear demonstration of the defendant’s ability to
understand the questions posed to him during the colloquy. See
Commonwealth v. McDonough, 812 A.2d 504, 507 (Pa. 2002).
Moses argues that his responses to the trial court’s colloquy were
“equivocal, thus invalidating any potential waiver of trial counsel.” Moses’
Brief at 30. He further argues that the trial court’s colloquy was “incomplete”
and “missing critical instructions and responsive dialogue required to render
a waiver of counsel knowing, intelligent, and voluntary.” Id. at 30-31. Moses
contends that the trial court “merely recited a portion of the colloquy found at
[Rule] 121(a) through (e)” and “either interrupted or redirected [Moses]
before ascertaining whether [Moses’] decision to proceed pro se was truly
voluntary, knowing, and intelligent; or instead, arose from frustrations arising
from [Moses’] unfortunate experience with prior counsel.” Id. at 38-39.
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Moses additionally asserts that the trial court “did not refer to the
Pennsylvania Rules of Evidence or [Moses’] need to familiarize himself with
those rules and/or the potential consequences of failing to do so.” Id. at 39.
Moses claims that the trial court’s failure to appraise him that he needed to
familiarize himself with the Rules of Evidence resulted in the exclusion of
evidence that was vital to Moses’ defense at trial. Moses contends that the
trial court “never ascertained from [Moses] what, if any, trial defenses were
contemplated by [Moses] in response to the criminal charges.” Id. Moses
maintains that the trial court “failed to determine what, if any information,
[Moses] either possessed or was targeting in preparation for trial, so that
[Moses] could be adequately prepared to confront objections and offers of
proof at his own trial.” Id. at 40. According to Moses, “[he] was never advised
by the [t]rial [c]ourt that his failure to raise objections or his inability to
respond comprehensively to a request for offer of proof could result in his loss
of use of potentially vital defense evidence.” Id.
Moses additionally claims that the trial court “failed to explain the
advantages of utilizing an experienced trial attorney during the defense of his
case . . . and prevented [Moses] from articulating his reasons and/or
circumstances which led to [Moses’] request to proceed pro se at trial.” Id.
at 44. Moses argues that the trial court “made no attempt(s) to educate
[Moses] as to the potential hazard of proceeding pro se . . . [nor any] effort(s)
to determine [Moses’] prior experience with defense counsel, or the
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circumstances leading to [Moses’] decision to conduct his own defense.” Id.
at 49.
Moses further faults the trial court for conducting the colloquy “on a
single occasion approximately eight months and two trial listings before trial
was commenced.” Id. He claims that “[t]he [t]rial [c]ourt did not even
inquire as to any potential change of circumstances or new facts that may
have arisen between [the colloquy] and the trial date.” Id. at 50. According
to Moses, “[he] was left to defend himself without being in physical possession
of relevant and corroborating physical evidence . . . [consisting of] phone
records with text messages [which] had either been lost or discarded by prior
appointed trial counsel.” Id. at 50. Moses points out that he was precluded
prior to trial from calling his sole fact witness, Ms. Moss, who could have
testified regarding her conversations with Atkerson which would have
contradicted Atkerson’s testimony that he had “no responsibility or agreement
to reimburse [Moses] for lost or stolen property and which would have also
supported [Moses’] defense that [Atkerson] manufactured the charges against
[Moses] to evade a debt to [Moses].” Id. at 50-51.
Based on our review of the record, we are satisfied that the trial court
substantially complied with the dictates of Rule 121. After Moses indicated
his desire to proceed pro se, the trial court conducted a hearing to ascertain
from Moses, on the record, whether he was making a knowing, voluntary, and
intelligent waiver of counsel. See N.T., 3/20/17, at 4-23; see also
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Pa.R.Crim.P. 121(C). At that hearing, trial court inquired about Moses’ age,
educational background, and basic comprehension skills. See N.T., 3/20/17,
at 4-5. Moses indicated that he was forty-four years old, had a college degree,
and could read, write, and understand the English language. Id. at 4-5.
Moses also confirmed that he was not under the influence of drugs, alcohol,
or any other substance. Id. at 5. The trial court thereafter elicited testimony
from Moses that complied with each of the requirements of Rule 121(A)(2).
Moses indicated on the record that he understood his right to be
represented by counsel, and that he had the right to have free counsel
appointed if he was indigent. See N.T., 3/20/17, at 5, 6; see also
Pa.R.Crim.P. 121(A)(2)(a). The trial court appraised Moses of each crime
listed in the criminal complaint and the Commonwealth’s burden of proof for
each of those crimes. See N.T., 3/20/17, at 7-10; see also Pa.R.Crim.P.
121(A)(2)(b). In response, Moses repeatedly indicated that he understood
the nature of the charges against him and the elements of each offense. See
N.T., 3/20/17, at 7-10. The trial court explained the range of sentences for
each offense, and the district attorney explained the applicable fines for each
crime. See N.T., 3/20/17, at 11-14; see also Pa.R.Crim.P. 121(A)(2)(c).
Moses repeatedly confirmed on the record his understanding of the sentence
ranges and the applicable fines. See N.T., 3/20/17, at 11-14. The trial court
advised Moses of the sentencing guideline ranges based on his prior record
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score and offense gravity score. Id. at 14-15. Moses confirmed his
understanding of the sentencing ranges. Id.
The trial court explained to Moses that if he elected to waive his right to
counsel, he would still be bound by all the normal rules of procedure that
counsel would be familiar with, and that, despite the appointment of standby
counsel, Moses would be directly responsible to comply with those rules. See
id. at 15-16; see also Pa.R.Crim.P. 121(A)(2)(d). Moses confirmed his
understanding of this risk. See N.T., 3/20/17, at 15-16. The trial court
explained to Moses that there were possible defenses to the charges that
counsel might be aware of, and if these defenses were not raised at trial, they
may be lost permanently. See N.T., 3/20/17, at 16; see also Pa.R.Crim.P.
121(A)(2)(e). Moses indicated to the trial court that he understood these
potential consequences. See N.T., 3/20/17, at 16. The trial court explained
that, in addition to defenses, there may be other rights that, if not timely
asserted by Moses, could be lost permanently. See N.T., 3/20/17, at 16-17;
see also Pa.R.Crim.P. 121(A)(2)(f). Again, Moses indicated his
understanding of these risks. See N.T., 3/20/17, at 17.
The trial court asked Moses whether anyone had coerced him into
waiving his right to counsel, and Moses confirmed that he had not been
coerced, and that waiver of his right to counsel was his decision. Id. at 17-
18. The trial court asked Moses whether he had any questions regarding his
rights, or the pros and cons surrounding his decision to represent himself at
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trial, and Moses responded in the negative. Id. at 20-21. Moses informed
the trial court that, with respect to his defense at trial, “no one can do it better
than myself.” Id. at 18. The trial court, having been satisfied that Moses’
waiver of counsel was knowing, voluntary, and intelligent, ruled that he could
proceed pro se, and appointed Moses standby counsel. See N.T., 3/20/17, at
22-23; see also Pa.R.Crim.P. 121(D).
While Moses argues that his responses were “equivocal,” the record
indicates a clear confirmation of his understanding of the requisite information
provided to him, and his desire to proceed pro se despite the risks involved.
Although the trial court did not specifically refer to the Pennsylvania Rules of
Evidence, it was not required to do so by Rule 121. The rule merely required
that the trial court ascertain Moses’ understanding that he “will still be bound
by all the normal rules of procedure.” See Pa.R.Crim.P. 121(A)(2)(d). The
trial court’s explanation to Moses that he would be strictly responsible to
comply with, and “be bound by all the rules of procedure that counsel would
be familiar with[,]” amply satisfied this requirement. See N.T., 3/20/17, at
15-16.
Similarly, the trial court was not required by Rule 121 to inquire into the
defenses contemplated by Moses or what information Moses either possessed
or was targeting in preparation for trial. Nor was the trial court required by
Rule 121 to specifically advise Moses that his failure to respond
comprehensively to a request for offer of proof could result in his loss of use
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of potentially vital defense evidence. Further, the trial court was not required
by Rule 121 to explain the myriad of advantages of utilizing an experienced
trial attorney or to elicit from Moses his reasons for requesting to proceed pro
se at trial. Rule 121 also did not require the court to educate Moses as to the
potential hazards of proceeding pro se or determine Moses’ prior experience
with defense counsel. With respect to Moses’ claim that the trial court erred
by conducting the colloquy eight months before trial commenced, had Moses
changed his mind in that time period, he could have alerted the trial court to
any change of circumstance or a reconsideration of his decision to waive
counsel. However, Moses did not do so.
While the trial court did not specifically inform Moses that “if errors occur
and are not timely objected to, or otherwise timely raised by the defendant,
these errors may be lost permanently,” see Pa.R.Crim.P. 121(A)(2)(f), this
deficiency does not automatically entitle Moses to relief. Pursuant to Rule
121, the trial court must ascertain on the record:
(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)(f).
Here, the trial court informed Moses that, in addition to the loss of
potential defenses, he may have rights that, if not timely asserted during trial,
could be lost permanently.
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THE COURT: All right. Do you understand that in addition to these
defenses there may be other rights that if not timely asserted in
the proper way may be forever lost? Do you understand that?
THE DEFENDANT: Yes.
THE COURT: So the bottom line is if you suffer some prejudice
from not knowing the rules or the process well enough, you would
likely not be successful in getting a new trial alleging those
reasons. Do you understand that?
THE DEFENDANT: I do understand that.
See N.T., 3/20/17, at 16-17.
While the trial court did not discuss the subject area covered by Rule
121(a)(2)(f) by using the exact language provided by the rule, the colloquy
nevertheless established that Moses understood that certain rights had to be
timely asserted, and in the proper manner, in order to be preserved. In our
view, this portion of the colloquy adequately addressed the subject area
covered by subsection (a)(2)(f).4 See Isaac, 205 A.3d at 363 (providing that
the trial court is responsible for ensuring that the defendant is questioned
about the six areas specified in Rule 121). Moreover, because Rule 121 goes
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4 Moreover, as noted by the trial court, “[Moses] was aware of his obligation
to object, or make a decision not to object, and he did so unequivocally and
with regularity throughout the trial.” Trial Court Opinion, 2/12/19, at 5 (citing
N.T., 11/7/17, at 35, 39, 53, 58, 97, 130, 133, 135, 164, 198, 200). The trial
court further concluded that there was no prejudice to Moses from the court’s
failure to explain the need to timely object to errors because none of Moses’
claims on appeal are subject to waiver due to the absence of a timely
objection. See id. at 5-6.
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farther than what the United States Constitution requires, a technically-
deficient waiver of counsel colloquy is not the same as a constitutionally
deficient waiver of counsel.5 Id. at 367. Accordingly, as the record
demonstrates that the trial court satisfied the minimum requirements of Rule
121, and the record supports the trial court’s conclusion that Moses’ waiver of
counsel was, in fact, knowing, intelligent, and voluntary, we cannot grant him
relief on his first issue.
In his second and third issues,6 Moses contends that the trial court erred
in precluding him from (1) introducing into evidence certain text messages
exchanged between Atkerson and Ms. Moss; and (2) calling Ms. Moss as a
defense witness at trial. Our standard of review concerning the admissibility
of evidence at trial is well-settled:
The admission of evidence is solely within the discretion of
the trial court, and a trial court’s evidentiary rulings will be
reversed on appeal only upon an abuse of that discretion. An
abuse of discretion will not be found based on a mere error of
judgment, but rather occurs where the court has reached a
conclusion that overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.
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5 The United States Constitution merely requires that a defendant “be made
aware of the dangers and disadvantages of self-representation, so that the
record will establish that ‘he knows what he is doing and his choice is made
with eyes open.’” Isaac, 205 A.3d at 367 (citation omitted).
6 Pursuant to our procedural rules, Moses was required to divide his argument
into as many parts as there are questions presented. See Pa.R.A.P. 2119(a).
However, in his brief, Moses discusses his second and third issues together.
We will overlook this deficiency and do the same.
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Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).
Moses contends that he should not have been precluded from presenting
the testimony of Ms. Moss regarding her conversations with Atkerson (verbal,
texts and emails) because the trial court failed to advise Moses about his
obligations to become familiar with the Rules of Evidence, including offers of
proof. Moses asserts that, in response to the Commonwealth’s objection to
the introduction into evidence of the text messages on the basis that they had
not been provided to the Commonwealth, he advised the trial court that his
mother still had the phone on which the texts were stored, and that the
original messages could be reviewed by the court.
Moses argues that Ms. Moss should have been able to testify regarding
her conversations with Atkerson because many of the conversations were
verbal and via email, and not contained within text messages. Moses contends
that Ms. Moss’ testimony regarding her conversations with Atkerson
constituted the “crux” of his defense. Moses’ Brief at 70. He claims that he
“should not be held responsible for espousing an inarticulate offer of proof in
response to a Commonwealth objection especially whereas here, [Moses]
never received any court instruction regarding gaining familiarity with the
Pennsylvania Rules of Evidence.” Id. at 71. Moses claims that he was under
no obligation to provide the Commonwealth with impeachment evidence.
Moses further claims that he had no ability to anticipate that Atkerson would
contradict his previous statements to Ms. Moss during his trial testimony. He
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claims that the trial court’s ruling constitutes an abuse of discretion which
prejudiced Moses by prohibiting him from proffering any defense evidence at
trial.
As discussed above, the trial court was not required by Rule 121 to
specifically advise Moses that he needed to familiarize himself with the Rules
of Evidence. See Pa.R.Crim.P. 121. Moreover, the trial court considered
Moses’ second and third issues and determined that they lack merit. It
reasoned that the messages did not establish a defense to the charges:
[T]he content of the messages was irrelevant. The test for
determining relevancy is whether the evidence sought to be
introduced tends to establish a material fact or make a fact at
issue more or less probable. Commonwealth v. Brown, 414
A.2d 70 (Pa. 1980); Commonwealth v. Scott, 389 A.2d 79 (Pa.
1978). [Atkerson] acknowledged sending messages to [Ms.
Moss]. [Atkerson] further acknowledged that there was a dispute
over property and money that [Moses] believed [Atkerson] was
responsible for. NT, 11/7/17, 37-39. The actual messages added
nothing to this topic.
Moreover, the whole matter to which the emails allegedly
related was itself irrelevant. Even if [Atkerson] had stolen or
misappropriated [Moses’] property, that is not a defense to the
charges. The law does not recognize a gunpoint self-help recovery
of property in the possession of another as an exception to the
robbery statute. Commonwealth v. Dombrauskas, 418 A.2d
493, 497 (Pa. Super. 1980) (“If one resorts to his own resources
to take money physically from another in such instances, public
policy precludes the assertion of a claim of right defense...”).
Accord Commonwealth v. Spector, [188 A.3d 545] (Pa. Super.
2018) [(unpublished memorandum)]. Nor are the text messages
in any way relevant or a defense to the assault and weapon
charges. See generally, Chapter 2 (culpability) and Chapter 5
(general principles of justification) of Title 18, the Pennsylvania
Crimes Code. Simply put, the only purpose for the text messages
was to support the defense theory that [Moses] was just getting
back his stuff. Because no such defense is cognizable under
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Pennsylvania law, the text message evidence about the details of
the already acknowledged prior property dispute was irrelevant
and properly excluded. In sum, further testimony as to the
content of the text messages was irrelevant and the [c]ourt
properly exercised it discretion in controlling the admission of
evidence.
Trial Court Opinion, 2/12/19, at 8-9.
We discern no abuse of discretion by the trial court in its evidentiary
rulings. The text/email messages and the testimony of Ms. Moss that Moses
sought to introduce into evidence were not relevant to any fact of consequence
in determining the action. The question of whether Atkerson had
misappropriated Moses’ property or owed Moses money on the date of the
incident simply did not bear upon any defense to the pending criminal charges.
See Pa.R.E. 401. Accordingly, Moses’ second and third issues warrant no
relief.
In his final issue, Moses contends that he did not knowingly,
intelligently, or voluntarily waive his right to testify on his own behalf at trial.
Initially, there is no requirement that the trial court conduct an on-the-record
colloquy when a defendant waives his right to testify. See Commonwealth
v. Baldwin, 8 A.3d 901, 907 (Pa. Super. 2010). Instead, the decision of
whether or not to testify on one’s own behalf is generally to be made by the
defendant after full consultation with counsel. Commonwealth v. Nieves,
746 A.2d 1102, 1104 (Pa. 2000). However, when a defendant elects to
proceed pro se, as was herein the case, he cannot obtain relief by raising a
claim of ineffectiveness of standby counsel. See Commonwealth v. Spotz,
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47 A.3d 63, 83 (Pa. 2012); see also Commonwealth v. Fletcher, 986 A.2d
759, 778 (Pa. 2009) (holding that a defendant who chooses to represent
himself has no recourse if he or standby counsel has been ineffective). The
appointment of standby counsel does not imply or authorize some sort of
hybrid representation. Spotz, 47 A.3d at 83. Thus, “[w]hen a defendant
elects to proceed at trial pro se, the defendant -- and not standby counsel --
is in fact counsel of record and is responsible for trying the case.” Id.
Moses points out that he initially informed the trial court of his intention
to testify on his own behalf. However, the next day, after discussing the
matter with standby counsel, Moses informed the trial court that he did not
wish to testify on his own behalf. Moses claims that the “sudden reversal of
his decision to present his testimony in support of his defense resulted from
stand-by counsel’s interference and from erroneous advice provided to
[Moses] by stand-by counsel.” Moses’ brief at 77. According to Moses,
standby counsel advised him that he need not testify since Ms. Moss was the
appropriate impeachment witness regarding Atkerson’s prior inconsistent
statements. Id. at 78. Moses argues that standby counsel misinterpreted the
trial court’s prior ruling prohibiting Ms. Moss from testifying. Moses further
argues that the trial court failed “to adequately explore whether [his] reversal
of his earlier representation to testify at his trial was made knowingly,
intentionally, and/or voluntarily[.]” Id.
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As explained above, a defendant who chooses to represent himself has
no recourse if he or standby counsel has been ineffective. See Spotz, 47
A.3d at 83; Fletcher, 986 A.2d at 778. Therefore, as Moses elected to
proceed pro se, he cannot fault standby counsel for his decision not to testify
at trial.
Similarly, Moses’ claim that the trial court erred in conducting a
defective colloquy does not entitle him to relief. As indicated above, the trial
court was under no obligation to conduct a colloquy regarding Moses’
testimonial rights. See Baldwin, 8 A.3d 907. Nevertheless, the trial court
did, in fact, extensively colloquy Moses regarding his right to testify. See N.T.
11/7/17, at 211-15. Given Moses’ decision to proceed pro se, he alone was
responsible for his decision to testify or not to testify, and the fact that the
trial court undertook to inform that decision does not entitle Moses to any
relief. Accordingly, Moses’ final issue fails.
Having found no merit to any of Moses’ issues on appeal, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/06/2020
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