Com. v. Showalter, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWIN ROY SHOWALTER
Appellant No. 1805 MDA 2016
Appeal from the Judgment of Sentence September 1, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003661-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 29, 2017
Edwin Showalter appeals from the judgment of sentence, entered in
the Court of Common Pleas of York County, following his conviction by a jury
of two counts of simple assault by physical menace,1 and his conviction by
the court of the summary offense of disorderly conduct.2 After our review,
we affirm.
On April 19, 2015, Showalter entered Harbor Freight in York County to
return an item he had purchased. A dispute arose as to the amount of the
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1
18 Pa.C.S. § 2701(a)(3) (“A person is guilty of assault if he: . . . (3)
attempts by physical menace to put another in fear of imminent serious
bodily injury[.]”).
2
18 Pa.C.S. § 5503(a)(4) (“A person is guilty of disorderly conduct if, with
intent to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he: (4) creates a hazardous or physically offensive
condition by any act which serves no legitimate purpose of the actor.”).
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refund. Stephany Nicholson, a cashier at the store, testified that Showalter
then left the store, but he returned shortly after that dispute to make a
purchase. This time, however, Showalter was shouting, and Nicholson
noticed he was agitated and invading her “personal space.” N.T. Jury Trial,
7/12/16, at 93. Showalter left the store again, and returned a third time,
just before closing time. Nicholson testified that Showalter was “trying to
come behind the registers with his fists balled and made [the employees]
feel threatened[.]” Id. at 83-84. Nicholson testified Showalter was acting
combative, and this time he lifted his shirt and exposed a handgun, which
was tucked inside his waistband. Another store clerk, Elizabeth Spells,
testified that at the time Showalter lifted up his shirt he said something to
the effect of, “[T]this is what I can do to you.” Id. at 94. Showalter then
left the store.
A customer, Rick Becker, asked Showalter if he had just shown the
store clerks a gun, to which Showalter replied, “I was just trying to scare
them.” Id. at 95. Showalter then left in his car, but not before Becker took
down the license plate number and called the police.
Officer Daniel Klinedinst of the Springettsbury Township Police
Department contacted Showalter later that evening. Showalter explained to
Officer Klinedinst what had occurred at the store, and stated that he did in
fact display the firearm to the store clerks. Showalter consented to a search
of his vehicle, where the handgun in question was located.
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Showalter was charged with two counts each of simple assault and
harassment, and one count of disorderly conduct. At a pretrial conference,
represented by Assistant Public Defender Kathryn Bellfy, Showalter indicated
he wished to represent himself. The court was not satisfied that Showalter
was willing to waive his right to counsel. Thereafter, at Showalter’s request,
the public defender filed a motion to withdraw. On February 2, 2016, the
court held a hearing on the motion to withdraw and conducted a full waiver
colloquy. See Pa.R.Crim.P. 121. The court permitted the public defender to
withdraw, allowed Showalter to represent himself, and appointed Attorney
Bellfy as standby counsel.
Following trial, during jury deliberations, the jury questioned whether
it could consider “the demeanor of the defendant throughout the trial[.]”
Id. at 215. The court responded affirmatively, stating, “[h]e’s a party to the
proceedings. They can certainly consider that throughout.” Id. The jury
convicted Showalter of two counts of simple assault, 3 and the court found
him guilty of the summary offense of disorderly conduct.4 Matthew G.
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3
To prove simple assault by physical menace, the Commonwealth must
establish that defendant intentionally placing another in fear of imminent
serious bodily injury through the use of menacing or frightening activity.
Commonwealth v. Little, 614 A.2d 1146, 1151-1155 (Pa. Super. 1992).
Intent can be proven by circumstantial evidence and may be inferred from
the defendant’s conduct under the attendant circumstances. Id. at 1154.
See also Commonwealth v. Repko, 817 A.2d 549, 554 (Pa. Super. 2003).
4
The court also acquitted Showalter of two counts of the summary offense
of harassment.
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Menges, Esquire, current counsel, entered his appearance. The court
sentenced Showalter to an aggregate term of 9 to 23 months’ imprisonment,
followed by 12 months’ probation. Post-sentence motions were filed and
denied. This appeal followed.
Showalter raises the following issues for our review:
1. Was [Showalter’s] waiver of counsel made voluntarily,
knowingly and intelligently when [Showalter] was not
advised of the permissible range of sentences and did not
understand he would be bound by the same rules as an
attorney?
2. Was [Showalter] prejudiced by the trial court’s failure to
provide the so-called pro se jury instruction?
3. Can [Showalter] be guilty of disorderly conduct when he
was engaged in a constitutionally protected activity - the
open carry of a firearm?
4. Can [Showalter] be guilty of simple assault when he did
not take a substantial step toward placing the alleged
victims in imminent fear of serious bodily injury?
Appellant’s Brief, at 5.
Showalter first claims his waiver of his right to counsel was not
voluntarily, knowingly and intelligently made. This claim is meritless.
A criminal defendant’s right to counsel under the Sixth Amendment
includes the right to waive that right and to represent oneself at criminal
proceedings. Faretta v. California, 422 U.S. 806 (1975); see also
Commonwealth v. Szuchon, 484 A.2d 1365, 1376-77 (Pa. 1984) (an
accused has right to conduct own defense pursuant to Article 1, Section 9 of
the Pennsylvania Constitution; in order to validly assert right to self-
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representation, defendant’s waiver of right to counsel must be knowing,
intelligent and voluntary). The right to appear pro se is guaranteed as long
as the defendant understands the nature of his choice. See Faretta, 422
U.S. at 835; see also Commonwealth v. McDonough, 812 A.2d 504, 508
(Pa. 2002) (concluding Faretta requires on-the-record colloquy in
satisfaction of Pa.R.Crim.P. 121, which colloquy may be conducted by the
court, the prosecutor, or defense counsel.)
Pennsylvania Rule of Criminal Procedure 121 provides the framework
and minimum guidelines for the waiver colloquy to ensure that the
defendant’s waiver is knowing, voluntary and intelligent. See Pa.R.Crim.P.
121(A)(1), (2); see also Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.
1998). Pursuant to Rule 121, the court must ensure:
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 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 those defenses are not raised at trial, they may be
lost permanently, and
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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).
Here, at the hearing on the motion to withdraw, Assistant Public
Defender Bellfy testified that she filed the motion to withdraw her
representation at Showalter’s request. N.T. Hearing on Motion to Withdraw,
2/23/16, at 4. Showalter sought to have Attorney Bellfy withdraw because
the public defender had “just been going along with the Court and [hadn’t]
been representing a defense.” Id. Despite the fact that the case was listed
for trial, and the public defender had been preparing a defense, Showalter
was adamant about representing himself. Showalter also complained of a
conflict of interest, but was unable to cite to anything in support of that
other than the fact that the “Public Defender’s Office have just been going
with the charges. They do not stand for the 2nd Amendment of the
Constitution of the United States or the 21 st Amendment.[5] They have been
just looking to do away with the guns and the firearms.” Id. at 6.
The court conducted a waiver colloquy, and explained the following to
Showalter:
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5
The 21st Amendment repealed the 18th Amendment (Prohibition), and is
clearly not relevant here.
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THE COURT: You have to understand that as standby counsel,
they will not do anything unless you ask them . . . a question or
to do something in particular. Do you understand that?
THE DEFENDANT: That sounds like a good plan.
THE COURT: They will not give you any advice unless you ask for
it. Do you understand that?
THE DEFENDANT: I understand.
****
THE COURT: Do you understand if you represent yourself, you
are going to be bound by the same rules of law, the same
evidence, rules of evidence, the same rules of procedure that an
attorney would be bound by? . . . The rules of law are the laws
that you are charged with. The rules of procedure are the
procedures by which we conduct a trial. The rules of evidence
would be the procedure by which items are introduced either
against you or on your behalf during the course of the trial. Do
you understand that? . . . So do you want to give up your right
to an attorney at this point and just have the Public Defender’s
Office act as standby counsel?
THE DEFENDANT: Yes.
Id. at 10-17. The court advised Showalter that he could hire private
counsel, be appointed counsel if he were indigent, or represent himself. Id.
at 5. The court advised Showalter of the fact that if he chose to represent
himself he would be bound by the same rules of law as an attorney. Id. at
12. The court also determined that Showalter was not under the influence
of anything that would interfere with his ability to understand the waiver
proceeding, and that Showalter was not forced, threatened or promised
anything in return for giving up his right to an attorney. Id. at 12, 17-18.
Showalter ultimately agreed to have the assistance of the public defender as
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standby counsel, and he indicated that he understood that standby counsel
would only give advice if he asked for it. Id. at 10.
Additionally, we find that Showalter’s statements during the colloquy,
that the charges were “false charges,” id. at 4, or that he did not
“understand these charges at all[,]” id. at 10, does not establish that he did
not understand the nature of the charges against him. Showalter’s
statements illustrated his mistaken belief that his Second Amendment right
to bear arms trumped the Pennsylvania Criminal Code in these
circumstances, not his inability to comprehend the charges against him. 6
Further, at the pretrial conference, the court had read Showalter the charges
against him, and explained to him that he could request a Bill of Particulars
if he needed additional information about the nature of the charges. N.T.
Pretrial Conference, 12/17/15, at 4-5. The trial court did acknowledge that
it did not state the permissible range of sentences and/or fines for the
offenses charged verbatim, see Pa.R.Crim.P. 121(A)(2)(c), but the court
ensured that Showalter had access to the guidelines ranges and the
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6
At the sentencing hearing, the Commonwealth suggested that Showalter’s
crimes may have resulted from mental health issues. N.T. Sentencing,
9/1/16, at 2. Showalter’s counsel responded: “I also note that Mr.
Showalter has not completed a high school education and that I believe
perhaps some of the issues that the district attorney’s office believes stem
from mental health issues may be educational deficiencies.” Id. at 3. The
court responded that, “the Defendant denies it, frankly the Court isn’t sure,
so we think a mental health evaluation would be appropriate in this case[.]”
Id. at 6.
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maximum sentences applicable to the offenses charged. N.T. Post-Sentence
Hearing, 10/24/16, at 5; N.T. Hearing on Motion to Withdraw/Waiver
Colloquy, 2/23/16, at 18.
After our review, we find the court’s conclusion that Showalter
knowingly, intelligently and voluntarily waived his right to counsel is
supported in the record. See Commonwealth v. Starr, 664 A.2d 1326(Pa. 1995); see also Commonwealth v. El, 977 A.2d 1158 (Pa. 2009)
(where defendant knowingly, voluntarily, and intelligently seeks to waive
Sixth Amendment right to counsel, trial court must allow individual to
proceed pro se). We agree with the trial court’s assessment that Showalter
understood the implications of his decision to represent himself.
Next, Showalter argues that he was prejudiced because the court
failed to provide the “pro se defendant” jury instruction, which informs a jury
that a defendant has the right to represent himself, and that the attorney at
the table is there for consultation only. Showalter argues this is reversible
error. This issue is waived. Showalter did not object to the court’s
instructions to the jury, and did not ask for additional instructions even after
the judge asked him if there was anything he wanted to add. See Pa.R.A.P.
302(b). In any event, we would find this claim meritless as well.7
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7
The instruction at issue provides:
Under our law, every defendant has the right to choose to be
represented by a lawyer and to have the court appoint a lawyer
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
if the defendant cannot afford one. A defendant also, however,
has the right to choose not to be represented by a lawyer and
[name of defendant] has exercised that right in this case.
A defendant who exercises the right of self-representation is still
bound by all rules of the court and the laws of the
Commonwealth and the United States regarding the conduct of a
trial.
You are not to draw any inference, favorable or unfavorable, to
the defendant or to the Commonwealth because the defendant
exercised the right of self-representation.
[if appropriate, add:]
[Specify], a lawyer, will be seated at the counsel table with the
defendant [or will be seated in the courtroom] and will be
available at all times to advise the defendant if the defendant
wishes to consult with counsel.
Pa.SSJI (Crim. 2.80), Third Edition, Vol. 1. Here, before the start of trial,
the court explained to the jury that the defendant had a right to represent
himself, and that he had chosen to do so. The court also stated that
“Attorney Katherine Bellfy is being standby counsel if – in case he wishes to
consult with anybody.” N.T. Jury Trial, 7/11/16, at 29. Although the trial
court did not instruct the jury that it should not draw any favorable or
unfavorable inference from the fact of self-representation, which is part of
the “pro se defendant” instruction, the court reasoned that the instruction is
neutral and, therefore, its omission was not prejudicial. We agree. A review
of the entire charge, as well as the court’s comments and admonitions to the
jury just prior to the start of trial, indicate there is no basis for finding an
abuse of discretion or reversible error. See Commonwealth v. Jones, 954
A.2d 1194 (Pa. Super. 2008) (trial court commits abuse of discretion only
when there is inaccurate statement of law); see also Commonwealth v.
Johnson, 107 A.3d 52, 87–88 (Pa. 2014) (“In reviewing a challenge to a
jury instruction, the entire charge is considered, not merely discrete portions
thereof. The trial court is free to use its own expressions as long as the
concepts at issue are clearly and accurately presented to the jury.”)
(citations omitted).
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Next, Showalter argues that the evidence did not support his
conviction of the summary offenses of disorderly conduct because he was
engaged in constitutionally protected activity — the open carry of a firearm.
He argues that the court’s finding of guilt was based solely on the basis of
“displaying his pistol in public.”
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier 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. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (quoting
Commonwealth v. Gooding, 818 A.2d 546, 549 (Pa. Super. 2003)).
A person is guilty of disorderly conduct “if, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(4) creates a hazardous or physically offensive condition by any act which
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serves no legitimate purpose of the actor.” 18 Pa.C.S. § 5503(a)(4). As
used in this section of the statute, the word “public” means
affecting or likely to affect persons in a place to which the public
or a substantial group has access; among the places included
are highways, transport facilities, schools, prisons, apartment
houses, places of business or amusement, any neighborhood, or
any premises which are open to the public.
18 Pa.C.S. § 5503(c).
Showalter argues that since his conviction was based solely on
“displaying his pistol in public,” the evidence was insufficient to support a
conviction for disorderly conduct. This argument ignores the context and
facts of this case. The Commonwealth’s evidence was sufficient to show that
Showalter “alarmed” the store clerks, that he intended to do so, and that his
conduct served no legitimate purpose.
Showalter also argues that his “act of open carrying a firearm not only
serves a legitimate purpose, but a constitutionally protected legitimate
purpose.” Appellant’s Brief, at 17. Again, Showalter ignores the facts of this
case. He also overlooks the concept that constitutional guarantees are not
absolute, and a state, in exercising its police power, can proscribe conduct in
the interest of societal order and safety without infringing on constitutional
rights. Just as acts and words that seriously offend the average person and
put them in fear are not protected “under the cloak of the First Amendment
right to free speech[,]” Showalter’s actions, which placed the employees in
fear and served no legitimate purpose, are not protected by the Second
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Amendment. See Commonwealth v. Schierscher, 668 A.2d 164 (Pa.
Super. 1995). See also De Jonge v. Oregon, 299 U. S. 353, 364 (1937)
(“These rights may be abused by using speech or press or assembly in order
to incite to violence and crime. The people through their legislatures may
protect themselves against that abuse.”)
Finally, Showalter challenges the sufficiency of the evidence of his
convictions for simple assault. He argues that even if he “did intentionally
lift his shirt to show his firearm to the cashiers, that action alone is
insufficient to cause imminent fear of serious bodily injury.” Appellant’s
Brief, at 22. We disagree. We find, once again, that Showalter’s argument
disregards the facts of this case, and ignores the reality of the
circumstances.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2017
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