Com. v. Jamison, D.

J-A10035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DASHAUN LAQUINN JAMISON
Appellant No. 1262 MDA 2013
Appeal from the Judgment of Sentence March 25, 2013
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-40-CR-00000068-2011
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 05, 2015
Appellant DaShaun Laquinn Jamison appeals from the judgment of
sentence entered in the Northumberland County Court of Common Pleas.
Appellant’s counsel filed an Anders1 brief and a motion for leave to
withdraw as counsel. We conclude Appellant’s claim that he was denied his
right to counsel is not frivolous. We further find counsel failed to comply
with the technical requirements of Anders and Santiago2 as to Appellant’s
denial of his right to counsel claim. We, therefore, deny counsel’s motion for
leave to withdraw as counsel and remand for counsel to prepare an
____________________________________________
1
Anders v. California, 386 U.S. 738 (1967).
2
Commonwealth v. Santiago, 978 A.2d 349 (Pa.2009).
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advocate’s brief as to whether Appellant was denied the right to counsel.
We find the remaining issues raised in the Anders brief to be frivolous.
On November 29, 2010, a criminal complaint charged Appellant with
two counts of aggravated assault, two counts of criminal attempt
(aggravated assault), and two counts of simple assault. 3 Police Criminal
Complaint at 2-3. The complaint alleged that on November 18, 2010,
Appellant, a prisoner at the State Correctional Institution at Coal Township,
assaulted two correctional officers. Id. On January 4, 2011, public defender
James Rosini represented Appellant at a preliminary hearing. On March 31,
2011, Mr. Rosini filed a motion to withdraw, alleging Appellant failed to
cooperate with counsel, insisted counsel file frivolous motions, and
requested counsel issue subpoenas to witnesses who would not assist the
defense. The motion also stated Appellant requested that Mr. Rosini
withdraw. Motion to Withdraw, 3/31/2011, at ¶¶ 2-7. Although the trial
court scheduled a hearing on the motion to withdraw for April 21, 2011, it
granted the motion on April 15, 2011, ordered the court administrator to
appoint new counsel, and cancelled the hearing. Order, 4/15/2011.4
____________________________________________
3
18 Pa.C.S. § 2702(a)(3), 901(a), and 2701(a)(1), respectively.
4
The Anders brief, the Commonwealth, and the trial court repeatedly state
Mr. Rosini withdrew because he left the Public Defender’s Office. N.T.,
3/8/2012, at 3, 7; N.T., 5/23/2012, at 3 (stating John Broda was Appellant’s
second counsel); Opinion, 1/6/2014, at 1 n.2; Anders Brief at 9; Appellee’s
Brief at 3. Further, the trial court did not rely on Mr. Rosini’s motion to
(Footnote Continued Next Page)
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Following Mr. Rosini’s departure, Michael Seward from the Public Defender’s
Office represented Appellant.
On July 7, 2011, the trial court scheduled Appellant’s trial for
November 7, 2011. Trial Order, 7/7/2011. The trial court ordered that
pretrial motions be filed within 60 days. Id. On October 14, 2011,
Appellant filed a pro se motion for appointment of new counsel. On
November 4, 2011, Mr. Seward filed a motion for leave to withdraw from
representation. On November 10, 2011, Mr. Seward filed an application for
a trial continuance because he was awaiting additional discovery.
Application for Trial Continuance, 11/10/2011. On January 10, 2012, the
trial court scheduled a pretrial conference for February 3, 2012. Criminal
Pretrial Order, 1/10/2011.5 On February 6, 2012, Appellant filed a pro se
application for a continuance requesting additional time to obtain counsel.
Application for Continuance, 2/6/2012. That same day, the trial court
appointed John Broda, also from the Public Defender’s Office, to represent
Appellant.6
_______________________
(Footnote Continued)
withdraw when it found Appellant was not denied his right to counsel.
Opinion, 1/6/2012, at 1-2.
5
The trial court had issued prior orders scheduling trial and/or pretrial
proceedings on various dates in January and February.
6
This order was dated January 3, 2012, but filed February 6, 2012. It
states the trial court “previously granted Defendant’s Motion to Remove
Counsel/Defense Counsel’s Motion to Withdraw.” Order, 2/6/2012.
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On February 10, 2012, Mr. Broda filed a motion for leave to withdraw
as counsel. On March 8, 2012, the Honorable Robert B. Sacavage conducted
a hearing on Mr. Broda’s motion. At the hearing, the following occurred:
THE DEFENDANT: Your Honor, the rationale for Mr.
Seward was that he wasn’t communicating with me, he
was disagreeing as far as receiving certain evidence that I
think we would need for trial, he didn’t want to go to trial.
THE COURT: So I granted your motion and appointed
somebody else for you.
THE DEFENDANT: But I feel as though Mr. Broda – he’s
from the same office – and as soon as I talked to Mr.
Broda, he said him and Mr. Seward had already talked
about it. I said I felt as though it’s a conflict that he’s from
the same office. I challenged Mr. Seward on his – his
competence and I just feel that it’s a conflict of interest.
...
MR. BRODA: I don’t believe it’s the nature of that. Again,
I believe it’s a personal conflict with Mr. – as [Mr.]
Seward’s – I don’t mean to put words in Mr. Jamison’s
mouth, but I believe he wasn’t happy with Mr. Seward’s
representation in the way he was handling his case.
THE DEFENDANT: That’s correct.
MR. BRODA: So that’s –
THE COURT: Why do you think Mr. Broda can’t help you?
THE DEFENDANT: Because the conflicts office, I just don’t
think that they’re correctly representing me. And like I
said, I feel as though Mr. Seward felt some type of way as
far as how I challenged his – you know, his competence.
And like I said, as soon as I talked to Mr. Broda, it seemed
like they already had discussion about my case already
[sic].
THE COURT: Well, I would expect that they would have
to, whoever the prior counsel was. In fact –
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THE DEFENDANT: No, I mean –
THE COURT: -- the rules of ethics require[] that a lawyer
who is assuming the case –
THE DEFENDANT: I don’t mean it – I mean, as far as not
wanting to take this case to trial, that’s the first thing, it
don’t seem like he had any confidence in it. Like Mr.
Seward has already said like this is a loss or its not triable,
I should take a plea. They want me to take an open plea.
I feel as though it’s a conflict in that aspect, that’s just
how I feel.
...
MR. BRODA: I did advise him of my opinion of his
defense.
THE DEFENSE: His opinion was the same as Mr. Seward.
That’s why I feel as though they already talked and Mr.
Seward’s already, you know, put in his mind that I need to
take a plea. His opinion was the same thing, if not exactly
what Mr. Seward was saying. That’s just how I feel.
THE COURT: Okay.
THE DEFENDANT: I know I can't pick what attorney I have,
I understand that, I just want an attorney that's going to
represent me. I’m ready for trial. That’s the first thing I
say, I’m trying to go to trial. I’m not trying to take no
plea. So for someone to keep trying to convince me to
take a plea — I’m not guilty, why should I plead guilty to
something I didn’t do.
I also got a problem, Mr. Broda said he’s been to trial like
fifteen times and only won two. Well, I need a lawyer
that’s going to represent me and willing — that has
experience in trial, that’s going to fight for me.
THE COURT: Well, the Court will — and this is your last
opportunity to reconsider your decision because I am not
inclined to just keep removing lawyers and appointing
somebody that you’re going to wait us out until you are
happy with [sic]. There are two individuals — three
individuals, the first one left the case through other
employment; the second one, you disagreed with their
performance; now, what I’m hearing here is another
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performance-related argument. So you either have Mr.
Broda, or if you don’t want him around, I will allow him to
withdraw and appoint him as standby counsel and you can
represent yourself.
THE DEFENDANT: That’s my only choice?
THE COURT: Well, you can take Mr. Broda. I’m not going
to appoint another person. But I will assign — if you're
going to be representing yourself, I will require him to be
in the courtroom, anytime you can reconsider bringing him
back and he will be readily available for you. So, do you
want him to withdraw?
THE DEFENDANT: I don’t want to represent myself, I don’t
know the law, I guess I’m forced to stay with Mr. Broda.
THE COURT: Mr. Broda, you will continue to – Mr. Broda, I
will deny your motion to withdraw.
N.T., 3/8/2012, at 3-8.
On March 23, 2012, the trial court scheduled a pretrial conference for
May 4, 2012, jury selection for May 7, 2012, and trial for May 18, 2012.
Criminal Pretrial Order, 3/23/2012. On May 7, 2012, the Honorable Charles
H. Saylor conducted jury selection for Appellant’s trial. At the jury selection,
Mr. Broda requested a sidebar conference, which Appellant attended. The
following exchange occurred:
MR. BRODA: Yes, Your Honor. Mr. Jamison told me in his
letter before and he’s telling me again to make a
statement to the judge. I mentioned that – he’s saying
he’s not ready to proceed to trial. I mean, judge made a
pretrial determination –
...
MR. BRODA: Okay. Your Honor, the judge made a
determination that the case is ready to go to trial. Mr.
Jamison is saying he’s not ready to proceed.
THE COURT: And the – well, what’s the basis.
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MR. BRODA: Well, he’s wanting – asking me to file
motions and saying he has inmates from other institutions
he wants to have subpoenaed and that hasn’t been
completed for this case to go to trial.
THE COURT: When is the trial scheduled for?
MR. BRODA: May 18th.
THE COURT: So that’s 11 days off so we will pick the jury
today and whatever motions you – you want to file
between now and then, you can do so but we will – I think
perhaps many of them can be between now and the 18th,
but we’ll proceed today.
N.T., 5/7/2012, at 3-4. The jury selection briefly resumed before the
following exchange occurred at sidebar:
THE DEFENDANT: I don’t understand why it wasn’t
brought up at the pretrial. If it was brought up at pretrial
then this all would have been addressed. I would like all
this to be on record because of dealing with Mr. Broda.
I requested Mr. Broda to file a habeas corpus on the
grounds that the Commonwealth didn’t present enough
evidence on the charges held for trial. He failed to do that.
I requested Mr. Broda to file an omnibus pretrial motion[]
requesting an appointment of an investigator for this case.
He failed to do that. Dismiss all the charges and
information. He failed to do that. Sequester enough
evidence. He failed to do that.
Continuously prepare for trial, he’s failed to do that. I
requested Mr. Broda to file a subpoena for [personnel] files
of all officers and CO’s that would testify in this case to
prepare for my defense.
THE COURT: Let me – you’re reading from something,
right?
THE DEFENDANT: Yes, sir.
THE COURT: How about if you just submit that?
THE DEFENDANT: What?
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THE COURT: How about if you just submit that?
THE DEFENDANT: This is a rough draft, Your Honor. It’s
just a rough draft. I prepared it for pretrial. It’s not that
long. It’s only –
THE COURT: What I told Mr. Broda was we pick the jury
and then we’ll consider whatever motions he wants to file.
THE DEFENDANT: But he’s not filing any. He’s telling me
–
THE COURT: He has the opportunity to file these motions.
THE DEFENDANT: But he’s telling me he’s not going to file
them, Your Honor.
THE COURT: Well –
THE DEFENDANT: He’s told me straight up.
THE COURT: We’re going to pick the jury today.
THE DEFENDANT: All right. So if we pick the jury today
and then it would be standby and then if we don’t get
these filed, the things that we’re requesting at the time of
trial, will it be continued?
THE COURT: We will deal with those all those motions at
some point, but we’re picking the jury.
THE DEFENDANT: I don’t understand that because then
with the rules of court I thought these motions have to be
filed before – before – seven days before pretrial, which is
why I told Mr. Broda to file them. So how is it that we file
them between now and a trial?
THE COURT: We’ll deal with any other motions at that
time. The jury will be picked.
THE DEFENDANT: I would at least like to read the rest of
this so that it could be on the record.
THE COURT: Okay. Keep your voice down.
THE DEFENDANT: All right. Where did I stop at? I
stopped at Mr. – I was requesting Mr. Broda to file a
subpoena for [personnel] files of all officers and CO’s that
would testify in this case and prepare for a defense. I
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think I have a right to those files. Mr. Broda failed to do
that. He failed to contact me since the denial of the
motion for Mr. Broda to withdraw as defense counsel. Mr.
Broda has not spoken to –
MR. TOOMEY: What was that last one?
THE DEFENDANT: Mr. Broda has failed to contact me since
the denial of the motion to withdraw as he – when we had
the motion to withdraw as my defense counsel. Mr. Broda
has not spoken with me about any trial strategy.
I requested Mr. Broda to file subpoenas to have any of the
officers who can testify for this case. He’s failed to do
that. And the last one, Mr. Broda has failed to file
transportation orders for all the prison witnesses that’s
needed for trial. I requested Mr. Broda to provide me with
a copy of the [b]ill of [p]articulars and he failed to do that.
I filed a motion myself requesting the [b]ill of [p]articulars
and I still haven’t gotten that.
THE COURT: I understand – is that [President] Judge
Sacavage who already ruled this that it’s ready for trial?
MR. TOOMEY: Your Honor, we have – we had – he filed a
motion that he wanted to represent himself or Mr. Broda to
withdraw.
THE DEFENDANT: May I ask –
MR. TOOMEY: And the judge gave him the option of either
he’s going to have Mr. Broda as his attorney or he could
represent himself and have Mr. Broda as standby. He
elected at that time – correct me if I’m wrong.
THE DEFENDANT: I elected to keep Mr. Broda because I
don’t know nothing about the law. But at the same time
Mr. Broda is refusing – he’s telling me straight to my face
that he’s not going to file none of these motions.
THE COURT: Did you tell that – at the earlier sidebar with
Mr. Broda, didn’t you say that [President] Judge Sacavage
ruled that this case was ready to go to trial?
MR. TOOMEY: He said it’s – he said it’s ready for trial. I
said, it’s an old case. November of 2010 was when the
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incidents happened and I’m ready for trial. I have my
witnesses subpoenaed, Mr. Broda had subpoenaed certain
inmates from the State Correctional Institution, I filed a
motion [in] limine that I wanted an offer of proof as to
what these inmates were going to say because their
inmates and it’s a security risk for the courthouse to have
all these SCI inmates in our county jail and county facilities
waiting for testimony. I was coordinating with the
Correctional Institution of Coal Township to have a video
conference to determine that the admissibility –
THE COURT: But question was [sic] these issues have
already been ruled on?
THE DEFENDANT: No, they have not.
MR. TOOMEY: He has not filed any other motions.
THE COURT: There’s no –
THE DEFENDANT: And that is because Mr. Broda is
refusing to file these motions. How can I prepare my –
how can I fight this case if I don’t have the records of the
officers? This is case is based [sic] solely on the testimony
of the officers.
THE COURT: But all the – all the witnesses are being
brought in.
THE DEFENDANT: No.
THE COURT: You’ve subpoenaed everybody and is [sic]
ready to go?
MR. TOOMEY: Yes, sir.
THE COURT: And you have some witnesses that you want
to subpoena?
THE DEFENDANT: Yes. I have more witnesses. Staff
members that were there.
THE COURT: You can do that by May 18th so we can
proceed.
THE DEFENDANT: He’s telling me no.
THE COURT: Okay. I made –
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THE DEFENDANT: Are you going to order him to do that?
He’s telling me no. Are you going to order him to file the
motions that I asked and subpoena the witnesses?
THE COURT: I can’t order him to do that. We’re here for
purposes of jury selection and we’re going to proceed with
the jury selection. That’s all.
N.T.5/7/2012, at 6-12. Following the above exchange, Mr. Broda
represented Appellant at jury selection.
On May 11, 2012, while still represented by Mr. Broda, Appellant filed
a “Motion for the Subpoena of Witnesses” and a “Motion for the Subpoena of
Documents and Records,” and on May 15, 2012, Appellant filed an “Omnibus
Pretrial Motion for Relief.”
On May 21, 2012,7 Appellant filed a pro se motion to withdraw counsel
and Mr. Broda filed a motion to withdraw as counsel. That same day,
Appellant filed a motion for continuance. On May 23, 2012, the Honorable
William Harvey Wiest held a hearing. The following exchange occurred:
[THE COURT]: Mr. Jamison, again, on the same day that
Mr. Broda filed, May 21st, you filed a handwritten motion to
withdraw counsel, I believe, requesting the same thing,
that Mr. Broda no longer be involved in your case and that
you be allowed to proceed pro se; is that correct?
[APPELLANT]: That is correct.
[THE COURT]: Okay. Anything else you would like to say
about that?
____________________________________________
7
It appears Appellant’s trial was continued from the May 18, 2012 trial
date. The certified record, however, does not contain an order continuing
the trial or setting a new trial date.
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[APPELLANT]: Well, I was wondering, I was requesting
within the motion – I was asking for a new counsel. If
that’s not for not, then I will proceed pro se. I was already
shot down once by [President Judge] Sacavage for new
counsel, so if I’m going to be shot down again, I’ll proceed
pro se.
[THE COURT]: It’s the second counsel you have had.
When your counsel is appointed, you don’t have the
choices that you do if you are hiring counsel on your own.
I’m not going to appoint new counsel for you, but I will
appoint Mr. Broda to remain as stand-by counsel. You will
be conducting your own trial, but he will be in the
courtroom, so that if at any point you have any questions
you would like to confer with him on, you will have that
opportunity. But he will not take an active role in it; only
to consult with you.
[APPELLANT]: All right. I understand that. I understand
that. Would it be possible that I be appointed another
different stand-by counsel? Me and Mr. Broda just don’t
see eye to eye. He disagree with me on everything.
[THE COURT]: No, sir. Again, this is your second counsel.
We have done what we needed to in appointing counsel for
you. We do not have to keep appointing new ones.
In addition – I know this is not on the schedule – but you
had several motions filed, handwritten motions filed, the
11th of May two of them and one on the 15th of May,
entitled motion for subpoena of witnesses, motion for
subpoena of documents and records, and the last one
omnibus pretrial motion for relief.
[APPELLANT]: That’s what I filed for a continuance on.
[THE COURT]: That is part of the omnibus pretrial. I’m
going to deny all of these motions on the basis that they
are not timely filed. We have a jury selected. We are
going to go ahead with the jury trial on Friday. All the
witnesses that you subpoenaed, the arrangements have
been made for them to be here, so it will not be delayed.
It will occur on Friday as scheduled.
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[APPELLANT]: I disagree that it is timely filed now to
represent myself [sic]. I know I have to – how am I not
supposed to be prepared for trial, seeing how Mr. Broda
and I disagreed on the motions? You yourself told me you
gave me leave of court at jury selection to file the motions.
[THE COURT]: I did not conduct jury selection.
MR. TOOMEY: It was Judge Saylor.
MR. JAMISON: He gave me leave of court to file all the
motions necessary. That’s the reason I filed them myself,
because Mr. Broda refused to file them.
...
THE COURT: So all these motions are going to have to be
ruled upon?
...
[THE COURT]: Are you prepared, Mr. Jamison, to defend
those motions or to present those motions and any
testimony required with them now?
[APPELLANT]: No, I am not, Your Honor.
...
THE COURT: After consideration with my law clerk and the
statement made by Judge Saylor at the time of jury
selection, I’m going to grant [Appellant] an opportunity to
present his motions. We will schedule a half day for it as
soon as possible. Of course, you will have notice of when
that half day is going to be. It probably will not be until
sometime next month.
Of course, that means a delay in the trial.
N.T., 5/23/2012, at 2-5.
Appellant filed additional pro se pre-trial motions. On August 30,
2012, Judge Saylor held a hearing on Appellant’s motions, which he denied.
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On February 11, 2013,8 prior to jury selection, the following exchange
occurred in the chambers of President Judge Sacavage:
THE COURT: Now, you have a right to remain silent. You
understand your rights of a trial. You don’t have to put on
a defense, you don’t have to call any witnesses. If you
choose to present a defense, then – and you choose to
testify, your character then comes into –
THE DEFENDANT: I understand that.
THE COURT: – issue. Also the – you have – I think I
discussed this with you at an earlier time. Your decision to
represent yourself is up to you. You’re an intelligent,
competent adult, and – but you must be responsible and
follow the same rules of trial that anyone has to.
THE DEFENDANT: I understand, sir.
THE COURT: So –
MR. TOOMEY: Was there a waiver of his right to have an
attorney represent him, a written waiver?
THE DEFENDANT: I waived my rights in front of –
MR. TOOMEY: I thought there may have to be a written
waiver.
THE DEFENDANT: Well, I filed the motion myself to
withdraw counsel and everything. I have the motion here,
I believe, Your Honor.
THE COURT: Here’s an August 21st, 2012, footnote
number one. Defendant’s motion to withdraw counsel was
filed May 21st, 2012, is moot as the defendant has elected
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8
Between September 2012 and February 2013, Appellant filed various
motions, which Judge Saylor ruled upon in a January 25, 2013 order. He
granted Appellant’s motion for communication, denied his motion for
reconsideration, denied his motion for disqualification, and granted in part
and denied in part his motion for additional juror information questionnaires.
Order, 1/25/2013. In addition, trial was continued on various occasions.
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to represent himself and [Mr.] Broda has been appointed
standby.
THE DEFENDANT: Did we have a hearing that day in front
of [Judge] Wiest, and he asked me, do I want to represent
myself. Because I had filed the motion and then we had
the hearing. Remember we had the hearing, and he asked
me if I wanted to represent myself, so I understand
everything.
THE COURT: I think the District Attorney’s asking about –
it’s a one page written form. The form advises you of your
right to counsel. It discusses what an attorney can do for
you. I will go over the contents of it at this point.
The Court has to make a decision that you’re – has to
agree that you should represent yourself because you are
making an intelligent, voluntary, competent, knowing
decision to do so, and that had never really come into
play. My observations of you are that you are competent,
intelligent, and you’re doing this voluntarily.
An attorney – you had previous attorneys before
representing you, so in your experience you have some
idea, I take it, as to what attorneys can do for you. Is that
correct?
THE DEFENDANT: Yes, I do.
THE COURT: An attorney can help pick a jury, can file
motions on your behalf. And this is a 2011 case. There
have been many motions filed and disposed of. Your
attorney can cross-examine witnesses that are brought
against you. An attorney can [negotiate] a plea
agreement, could represent you at trial, represent you on
appeal, make objections to evidentiary matters, to
procedural matters, so that they can be preserved for later
review at the appellate court level.
He can make opening statements, closing arguments
during the trial, and generally represent you and protect
your rights under the constitution at all stages of the
proceedings. And you are aware of this?
THE DEFENDANT: Yes.
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THE COURT: And there has been attorneys [sic]
appointed, and at this juncture Mr. Broda was appointed
by this Court in August to act as standby counsel.
Correct?
THE DEFENDANT: Yes.
THE COURT: And he is here. He’s in the room here at the
time. And, Mr. Broda, for the record you are still standby
counsel, are you not?
MR. BRODA: Yes, Your Honor.
THE COURT: So you will be sitting in the courtroom
behind the defendant.
MR. BRODA: Yes, Your Honor.
THE COURT: If you wish to change your mind, take him
on as counsel, you may do so at any time.
THE DEFENDANT: I understand, Your Honor.
THE COURT: I’m satisfied that he can represent himself.
N.T., 2/11/2013, at 10-13.
A jury convicted Appellant of one count of aggravated assault and
acquitted him of all other charges. Verdict, 2/25/2013. On March 25, 2013,
the trial court sentenced Appellant to three to six years’ imprisonment. On
April 5, 2013, Appellant filed post-sentence motions, which the trial court
denied on May 13, 2013. On July 11, 2013, a letter from Appellant to
President Judge Sacavage was docketed.9 That same day, the trial court
issued an order treating the letter as a motion for allowance of appeal nunc
pro tunc, granting the motion, and ordering the clerk of courts to file
____________________________________________
9
The letter stated Appellant filed a notice of appeal on May 28, 2011 and
had the prison cash slips as proof of filing.
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Appellant’s notice of appeal. On August 2, 2013, Appellant filed a pro se
concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b) and the trial court issued
its Rule 1925(a) opinion on January 6, 2014.
On May 30, 2014, Appellant filed an application for appointment of
counsel. On June 18, 2014, this Court ordered that the trial court appoint
counsel to represent Appellant on appeal. The trial court appointed counsel
on July 21, 2014. On November 14, 2014, counsel filed an Anders brief and
a motion for leave to withdraw.
The Anders brief raises the following issues:
1. Denial of Right to Counsel: The [trial court] erred in not
providing counsel to [Appellant] at trial.
2. Excluded Hearsay: The [trial court] erred in excluding
certain hearsay evidence which [Appellant] wished to use
at trial.
3. Motion to Suppress: The [trial court] erred in not
suppressing video footage.
4. Brady Violation: The trial court erred in not sanctioning
the Commonwealth for untimely disclosure of certain video
footage.
5. Inconsistent Verdict: The guilty verdict should be
thrown out as inconsistent with the acquittal on the other
charges.
6. Evidence Not in Possession of the Jury: The [trial court]
erred in not allowing the jury to possess certain evidence
in deliberations.
7. Weight and Sufficiency of the Evidence: The verdict was
contrary to the weight and sufficiency of the evidence.
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Anders Brief at 6 of 20.
When appellate counsel files an Anders brief, we must conduct an
independent review of the record to ensure there are no non-frivolous
arguments that could be raised on appeal.10 See Santiago, 978 A.2d at
359 (reviewing court must make independent determination of merits of
appeal).
Our Supreme Court has stated the:
[L]ack of merit in an appeal is not the legal equivalent of
frivolity. Anders “appears to rest narrowly on the
distinction between complete frivolity and absence of
merit. The latter is not enough to support either a request
by counsel to withdraw, nor the granting of such a request
by the court.”
Commonwealth v. Greer, 314 A.2d 513, 514 (Pa.1974) (quoting ABA
Project on Standards for Criminal Justice, Standards Relating to the Defense
Function § 8.3, commentary at 297 (Approved Draft, 1971)); accord
Commonwealth v. Edwards, 906 A.2d 1225, 1231 (Pa.Super.2006).
Further, this Court has stated:
Our system of appellate review is based upon the notion
that an adversarial process will best advance the interests
of the parties and the development of the law. In this
process, each side is expected to make its best
argument(s) and the appellate court decides which
argument is of greater merit. It appears that unless a
position is without question defeated by existing caselaw,
an appointed counsel should advance the best argument
____________________________________________
10
Counsel must also comply with the technical requirements of Anders and
Santiago. We discuss these requirements below.
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he/she is capable of constructing and allow the appellate
court to make the ultimate determination that the
argument lacks merit. It may be that counsel believes
that the argument advanced is unlikely to ultimately
prevail. Nevertheless, this does not mean that the appeal
is wholly frivolous.
Commonwealth v. Kearns, 896 A.2d 640, 647 (Pa.Super.2006).
Appellant’s first issue maintains Appellant was denied his right to
counsel. We find this issue is not wholly frivolous.
The trial court found:
[Appellant] first claims that his right to effective assistance
of counsel was violated and claims that he was allowed to
proceed pro se without the benefit of a Court colloquy as
to the knowing, voluntary and intelligent waiver of counsel.
The facts underlying [Appellant’s] representation status
belie his claim. [Appellant] was represented by three
separate attorneys during the course of proceedings in this
case.2
2
[Appellant’s] first attorney, from the Public Defender’s
office, left the office for another position, at which point
[Appellant] was assigned to [Mr.] Michael Seward. At
some point, [Appellant] and his new counsel did not see
eye to eye, at which point his request for new counsel
was granted and he was assigned to [Mr.] John Broda.
[Appellant] then attempted several times to dismiss [Mr.]
Broda, culminating in his status as set forth above.
Of equal importance is that the request to proceed pro
se be unequivocal. While this court has not considered
when a request to proceed pro se is deemed
“unequivocal” a review of federal case law reveals that
the courts generally consider a myriad of factors in
concluding whether a request was unequivocal
including: whether the request was for hybrid
representation, see, e.g., [United States v.
Callwood, 66 F.3d 1110, 1113 (10th Cir. 1995)], or
merely for the appointment of standby or advisory
counsel, [United States v. Baker, 84 F.3d 1263, 1267
(10th Cir.1996)]; the trial court’s response to a
request, [United States v. Hernandez, 203 F.3d 614
- 19 -
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(9th Cir. 2000)]; whether a defendant has consistently
vacillated in his request, Brown v. Wainwright, 665
F.2d 607 (5th Cir. 1982); and whether a request is the
result of an emotional outburst, Jackson v. Ylst, 921
F.2d 882 (9th Cir. 1990); see also Reese v. Nix, 942
F.2d 1276 (8th Cir. 1991) (finding that request that
was merely an impulsive response to the trial court’s
denial of a request for new counsel was not
unequivocal). The essence of these cases is that the
inquiry surrounding whether a request to proceed pro
se is unequivocal is fact intensive and should be based
on the totality of the circumstances surrounding the
request.
Commonwealth v. Davido, [868 A.2d 431 (Pa.2005)].
Here, [Appellant] elected to proceed with standby counsel,
and standby counsel was available to him at all times. He
consulted with standby counsel several times during
various proceedings, up to and including jury selection and
trial. Thus, [Appellant’s] right to counsel was not violated,
and the [trial court] was not obligated to conduct a
colloquy, although it in fact did so.
Opinion, 1/6/2012, at 1-2.11
The Anders brief maintains, without citing any case law, that
Appellant was not denied his right to counsel. It notes Appellant had three
court-appointed attorneys. The Anders brief reasons that the trial court
appointed stand-by counsel, Appellant was not aggrieved by the stand-by
counsel arrangement, Appellant did not object when the court reminded him
that he chose to proceed pro se, and Appellant “ably represented himself at
trial and won acquittal on 5 of 6 counts.” The Anders brief further states
____________________________________________
11
The trial court opinion is not paginated. All page numbers are supplied by
this Court.
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that “as the [trial court] note[d] in its [o]pinion, Mr. Broda was present
throughout and was consulted by [Appellant],” and “[the trial court] had
conducted an adequate colloquy with [Appellant].” Anders Brief at 9-10.
Counsel did not conduct any analysis of the colloquy the court allegedly
conducted; he merely relied on the trial court’s conclusion that it conducted
an adequate colloquy.12
The Sixth Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution provide defendants with the right
to counsel for his or her defense. Commonwealth v. Lucarelli, 971 A.2d
1173, 1178 (Pa.2009) (quoting Rothgery v. Gillespie County, --- U.S. ---,
128 S. Ct. 2578, 2583 n. 8, 171 L. Ed. 2d 366 (2008) and Commonwealth v.
McDonough, 812 A.2d 504, 506 (Pa.2002)). The right to counsel,
however, is not absolute. Id. (quoting Commonwealth v. Randolph, 873
A.2d 1277, 1282 (Pa.2005)).
A defendant who seeks court-appointed counsel “does not have a right
to choose the particular counsel to represent him.” Commonwealth v.
Rucker, 761 A.2d 541, 542 n.1 (Pa.2000) (citing Commonwealth v.
Moore, 633 A.2d 1119, 1125 (Pa.1993)). After counsel has been appointed,
____________________________________________
12
The Commonwealth concedes the trial court did not conduct a proper
colloquy and argues Appellant forfeited his right to counsel. Appellee’s Brief
at 3 (noting the colloquy did not comply with all requirements of
Pa.R.Crim.P. 121).
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the defendant cannot “change to other assigned counsel unless a substantial
reason exists for the change.” Id. (citing Pa.R.Crim.P. 316(c)(ii)).
A defendant can waive or forfeit his right to counsel. Lucarelli, 971
A.2d at 1178-79. Our Supreme Court has explained:
Waiver is “an intentional and voluntary relinquishment of a
known right.” By contrast, forfeiture . . . does not require
that the defendant intend to relinquish a right, but rather
may be the result of the defendant’s “extremely serious
misconduct” or “extremely dilatory conduct.”
Id. at 1179 (internal citations omitted).
If a defendant seeks to waive his right to counsel, “the judge shall
ascertain from the defendant, on the record, whether this is a knowing,
voluntary, and intelligent waiver of counsel.” Commonwealth v. Phillips,
93 A.3d 847, 852 (Pa.Super.2014) (citing Pa.R.Crim.P. 121(c)). The waiver
colloquy must “contain a clear demonstration of the defendant’s ability to
understand the questions posed to him during the colloquy.” Id. (quoting
Commonwealth v. McDonough, 812 A.2d 504, 507 n.1 (Pa.2002)). A
trial court must “fully advise the accused [of the nature and elements of the
crime] before accepting waiver of counsel.” Id. at 853 (quoting
Commonwealth v. Clyburn, 42 A.3d 296, 299 (Pa.Super.2012) (emphasis
deleted and alteration in original). Pennsylvania Rule of Criminal Procedure
121 governs waiver of the right to counsel and 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:
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(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 trial court must further inquire “about the
defendant’s age, educational background, and basic comprehension skills.”
Phillips, 93 A.3d at 853 (citing Pa.R.Crim.P. 121(C)). Further, this Court
reviews “the totality of the relevant circumstances only after we decide the
trial court has met the minimum requirements of Rule 121, to determine
whether the defendant’s waiver of the constitutional right to counsel was a
knowing, voluntary, and intelligent waiver.” Id. at 854.
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In Lucarelli, our Supreme Court held that Rule 121 does not apply
where a defendant forfeits his right to counsel. 971 A.2d at 1179. The Rule
applies only where the defendant waives his right to counsel. Id. The
Court held a defendant forfeits his right to counsel where his “course of
conduct demonstrates his or her intention not to seek representation by
private counsel, despite having the opportunity and financial wherewithal to
do so.” Id. It further noted that:
Upon examining the jurisprudence developed by other
jurisdictions regarding forfeiture of the right to counsel, we
observe that defendants have been held to have forfeited
the right to counsel where they have either engaged in
physically abusive and threatening conduct, or have
engaged in dilatory conduct. See e.g., Minnesota v.
Lehman, 749 N.W.2d 76, 81-82 (Minn.Ct.App.2008),
review denied, 2008 Minn. LEXIS 478 (Minn. filed August
5, 2008) (collecting cases and holding that defendant
forfeited his right to court-appointed counsel where
defendant attacked and beat the attorney in open court);
Bultron v. State, 897 A.2d 758 (Del.2006) (holding that
defendant forfeited his right to counsel where he engaged
in ongoing abuse of his attorney and requiring defendant
to proceed pro se at trial); Wilkerson v. Klem, 412 F.3d
449, 454 (3d Cir. 2005) (holding that a defendant who had
been duly notified of the date of his trial, who had been
advised to obtain counsel in sufficient time to be ready for
trial, and who appeared on the scheduled date without
counsel and with no reasonable excuse for his failure to
have counsel present, forfeited his right to counsel).
Id. at 1179-80.
In Commonwealth v. Kelly, this Court found a defendant who was
appointed counsel forfeited his right to counsel. 5 A.3d 370
(Pa.Super.2010). We reasoned:
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Kelly was a criminal defendant who had been unwilling to
cooperate with all three counsel assigned to him; who
argued all counsel were incompetent because they refused
to argue what he believed was the law; who, the day after
his pro se motion to withdraw his first guilty plea was
granted, filed pro se an omnibus pre-trial motion seeking
suppression of evidence on a ground the trial court had
already addressed (validity of search warrant); who
wanted a counsel, but only one who would please him;
who treated appointed counsel with disdain; whose trial
had been already postponed because he could not agree
with assigned counsel (counsel 2); who had been warned
by the trial court that failure to cooperate with assigned
counsel (counsel 3) would result in him representing
himself pro se at trial; who sought to have other counsel
appointed to him (who would have been counsel 4) and
postpone the trial instead of trying to cooperate with
counsel 3; and who clearly was not interested in listening
closely [to] what [the trial judge] was telling him,
consumed as he was in making his point counsel were
ineffective and he knew the law better than assigned
counsel.
Id. at 381-82.13
____________________________________________
13
The court in Kelly noted the case differed from Lucarelli and the other
Pennsylvania forfeiture cases because, in Kelly, the defendant was eligible
for court-appointed counsel. 5 A.3d at 379 n.7.
The Kelly court also noted a “hybrid situation” where a defendant loses his
right to counsel, stating:
[T]here is a hybrid situation (“waiver by conduct”) that
combines elements of waiver and forfeiture. Once a
defendant has been warned that he will lose his attorney if
he engages in dilatory tactics, any misconduct thereafter
may be treated as an implied request to proceed pro se
and, thus, as a waiver of the right to counsel.
....
(Footnote Continued Next Page)
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The trial court did not conduct a proper colloquy of Appellant at any
stage of the proceedings. Although President Judge Sacavage inquired as
to some elements of Rule 121 prior to the February 11, 2013 jury selection,
his colloquy was not complete. He did not ensure Appellant understood the
nature of the charges, the elements of each charge, or the permissible range
of sentences of the charges. He did not inform Appellant there were possible
defenses that counsel might be aware of which would be permanently lost if
not raised or that Appellant had rights that would be lost permanently if not
timely raised, and he did not advise Appellant his right to challenge errors
would be lost permanently if not timely asserted. N.T., 2/11/2012, at 10-
13. Further, the trial court did not inquire about the defendant’s age,
educational background, and basic comprehension skills. Because the trial
court failed to comply with the minimum requirements of Rule 121, and
failed to inquire as to Appellant’s background, Appellant did not waive his
_______________________
(Footnote Continued)
These are not “waiver” cases in the true sense of the word.
In many situations there will be defendants who engage in
dilatory conduct but who vehemently object to being
forced to proceed pro se. These defendants cannot truly
be said to be “waiving” their Sixth Amendment rights
because although they are voluntarily engaging in
misconduct knowing what they stand to lose, they are not
affirmatively requesting to proceed pro se. Thus, instead of
“waiver by conduct,” this situation more appropriately
might be termed “forfeiture with knowledge.”
Id. at 379 (quoting United States v. Goldberg, 67 F.3d 1092, 1100-01
(3d Cir. 1995)).
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right to counsel. See Phillips, 93 A.3d at 855 (vacating judgment of
sentence and remanding for further proceedings where trial court failed to
meet minimum requirements of Rule 121 and failed to question appellant on
qualitative aspects of waiver of counsel at critical stages of proceedings).
Because Appellant did not waive his right to counsel, his constitutional
right to counsel was violated unless he forfeited this right. See Lucarelli,
971 A.2d at 1179. Appellant filed pro se motions to remove two court-
appointed attorneys because he disagreed with their assessment of his case,
they refused to advance legal arguments Appellant believed had merit, and
Appellant believed a conflict of interest existed because they both were from
the Public Defender’s Office.14 There is no evidence, however, that Appellant
treated either counsel with disrespect or disdain. Further, although
Appellant filed motions which delayed trial, it is not clear that any delay was
intentional. See N.T., 3/8/2012, at 3-8; N.T., 5/7/2012, at 3-4, 6-12. It
appears Appellant may not have known counsel did not file the motions he
requested until after the pretrial conference. N.T., 5/7/2012, at 6-12. Nor
is there evidence Appellant “engaged in physically abusive and threatening
conduct.” See Lucarelli, 971 A.2d at 1179. Although the issue of whether
____________________________________________
14
As noted above, Appellant’s first court-appointed counsel filed a motion to
withdraw, but the trial court did not rely on this motion when finding
Appellant was not denied his right to counsel. Motion to Withdraw,
3/31/2011; Opinion, 1/6/2014.
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Appellant was denied his right to counsel may not merit relief on appeal, it is
not wholly frivolous.
We further note that, as to the issue concerning Appellant’s right to
counsel, appointed counsel did not comply with the technical requirements
of Anders and Santiago. Prior to withdrawing as counsel on a direct appeal
under Anders, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago. The brief
must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel must also provide a copy of the
Anders brief to the appellant, together with a letter that advises the
appellant of his or her right to “(1) retain new counsel to pursue the appeal;
(2) proceed pro se on appeal; or (3) raise any points that the appellant
deems worthy of the court’s attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super.2007). Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super.2007).
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Appellant’s counsel’s motion for leave to withdraw as counsel states:
“Counsel has carefully considered this matter and can find no basis which is
not frivolous to appeal [Appellant’s] conviction for one count of aggravated
assault.” Motion for Leave to Withdraw as Counsel, at ¶ 2; see also Letter
from James L. Best, Esq. to DaShaun Laquin Jamison, dated 11/10/2014
(“Letter to Appellant”). Counsel notified Appellant of the withdrawal request,
supplied him with copies of the motion for leave to withdraw and the
Anders brief, and sent Appellant a letter explaining his right to proceed pro
se or with new, privately-retained counsel to raise any additional points or
arguments that Appellant believed had merit. See Motion for Leave to
Withdraw as Counsel at ¶ 5; Letter to Appellant. Counsel’s Anders brief
provides a “Statement of the Facts,” which briefly summarizes the factual
and procedural history of the case. The section, however, is incomplete and
does not contain citations to the record. Anders Brief at 7. For six of the
seven arguments, it provides citations to the record, refers to evidence of
record that might arguably support the issues raised on appeal, provides
citations to relevant case law, states counsel’s conclusion that the appeal is
wholly frivolous, and states his reasons for concluding the appeal is
frivolous. Id. at 10-20. However, for the issue regarding whether
Appellant was denied his right to counsel, the Anders brief provides no
citations to case law and states that the trial court conducted an adequate
colloquy, even though it failed to do so. Id. at 9-10. Accordingly, in
addition to finding Appellant’s argument concerning his right to counsel is
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non-frivolous, we conclude counsel failed to comply with the technical
requirements of Anders for that issue.15
Appellant’s remaining issues are frivolous.
Appellant’s second issue maintains the trial court erred when it failed
to admit into evidence a written report authored by Captain Charles Stetler
prior to Captain Stetler’s testimony and failed to admit testimony from
Appellant’s mother, father, and grandmother about telephone conversations
they had with individuals who did not testify. Anders Brief at 10-11.
“[T]he admissibility of evidence is within the discretion of the trial
court, and such rulings will not form the basis for appellate relief absent an
abuse of discretion.” Commonwealth v. Hoover, 107 A.3d 723, 729
(Pa.2014) (quoting Commonwealth v. Rivera, 983 A.2d 1211, 1228
(Pa.2009)). Pennsylvania Rule of Evidence 802 provides that “[h]earsay is
not admissible except as provided by these rules, by other rules prescribed
by the Pennsylvania Supreme Court, or by statute.” Hearsay is defined as
an out-of-court statement offered “to prove the truth of the matter asserted
in the statement.” Pa.R.Evid. 801. Both Captain Stetler’s report and the
proposed testimony of Appellant’s family members constitute inadmissible
____________________________________________
15
Although the “Statement of the Facts” section of the brief does not contain
citations to the record, the argument sections for the remaining six issues
contain citations to the record. Anders Brief, at 10-20. Therefore, the brief
as to the remaining sections substantially complies with Anders and
Santiago.
- 30 -
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hearsay. The court acted within its discretion when it refused to admit
Captain Stetler’s report until he testified. N.T., 2/19/2013, at 172. Further,
the trial court acted within its discretion when it refused to admit the
testimony of Appellant’s family members. N.T., 2/19/2013, at 223. This
claim is frivolous.
Appellant’s third issue claims the trial court erred in denying his
motion to suppress a videotaped recording of the incident. Appellant claims
the prison staff tampered with the video captured by the prison facility
cameras, that the videotape included only a portion of the relevant incident,
and that it failed to include an earlier encounter between the prison guards
and Appellant. Anders Brief at 11; N.T., 8/30/2012, at 11-12. We review
a denial of a suppression motion to determine “whether the record supports
the trial court’s factual findings and whether the legal conclusions drawn
therefrom are free from error.” Commonwealth v. Reppert, 814 A.2d
1196, 1200 (Pa.Super.2002) (quoting Commonwealth v. McClease, 750
A.2d 320, 323 (Pa.Super.2000)). Judge Saylor determined at the August
30, 2012 pre-trial hearing that Appellant presented no evidence the prison
staff manipulated the videotape. N.T., 8/30/2012. Further, the
Commonwealth presented testimony from an electronics technician from the
prison who stated the tape was extracted from digital recordings made by
the facility’s cameras and the facility does not have the ability to edit the
videotapes. N.T., 8/30/2012, at 6-7. Judge Saylor found Appellant’s claims
that the prison staff included only a portion of the relevant incident “may be
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arguments at trial,” but were not a basis for suppression. Id. at 12. The
trial court acted within its discretion in admitting the videotape, and
Appellant’s claim is frivolous.
In his fourth issue, Appellant alleges the Commonwealth violated
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), when it failed to
disclose a portion of a video and audio recording from a handheld camera
(“video/audio recording”)16 that would have captured the moments prior to
the incident at issue.17 Anders Brief at 11-12, N.T., 2/15/13, at 162-193.
Pursuant to Brady, “the prosecution’s failure to divulge exculpatory
evidence is a violation of a defendant’s Fourteenth Amendment due process
rights.” Commonwealth v. Com Ly, 980 A.2d 61, 75 (Pa.2009). To
establish a Brady violation, a defendant must “demonstrate that exculpatory
or impeaching evidence, favorable to the defense, was suppressed by the
____________________________________________
16
The prison had cameras at different locations throughout the prison
facility. The facility cameras did not have audio. N.T., 2/15/2013, at 164.
In addition, a guard captured a portion of the incident on a handheld
camera, that had video and audio. Id. at 164-65. The guard had the
camera because a prisoner housed near Appellant needed to be recorded
when he exited his prison cell and the guards had taken that prisoner to the
shower prior to the incident. Id.
17
It appears the Commonwealth produced a portion of the video/audio
recording that captured the incident, but not the moments leading up to the
incident, which Appellant claimed would have captured relevant
conversation. N.T., 2/15/13, at 162-193.
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prosecution, to the prejudice of the defendant.” Id. (quoting
Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa.2008)).
At the end of the first day of trial, after the video/audio recording of
the incident was admitted, the trial court ordered the Commonwealth to
attempt to locate the portion of the video/audio recording that preceded the
admitted portion. N.T., 2/15/2013, at 184-86. At the next trial day,18 the
Commonwealth admitted the requested portion of the video/audio recording
from the handheld camera. N.T., 2/19/2013, at 4. Appellant was able to
cross-examine the witness regarding the video/audio recording.
The trial court found, although the “Commonwealth may have
inadvertently at best, caused the initial suppression of evidence,” Appellant
did not contend he was prejudiced by the evidence or establish the evidence
had exculpatory or impeachment value. Opinion, 1/6/2014, at 5. This was
not error, and Appellant’s Brady claim is frivolous.
In his fifth issue, Appellant argues the verdict was inconsistent
because the jury found him guilty of aggravated assault, but acquitted him
of simple assault, a lesser included offense. Anders Brief at 12. Although
“often perplexing,” inconsistent verdicts “are not considered mistakes and do
not constitute a basis for reversal.” Commonwealth v. Thomas, 65 A.3d
939, 944 (Pa.Super.2013) (quoting Commonwealth v. Stokes, 38 A.3d
____________________________________________
18
The first day of trial was a Friday. The next day of trial was a Tuesday, as
the Monday was a court holiday.
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846, 855 (Pa.Super.2011)). “[T]he rationale for allowing inconsistent
verdicts is that it is the jury’s sole prerogative to decide on which counts to
convict in order to provide a defendant with sufficient punishment.” Id. at
944-45 (quoting Stokes, 38 A.3d at 855). The trial court did not err in
denying relief based on an inconsistent verdict and we agree the claim is
wholly frivolous.
Appellant claims in his sixth issue that the trial court erred in refusing
to send certain items to the jury room during deliberations. Anders Brief at
13. The Pennsylvania Rules of Criminal Procedure provide: “the jury may
take with it such exhibits as the trial judge deems proper.”
Pa.R.Crim.P.646(A). “Whether an exhibit should be allowed to go out with
the jury during its deliberation is within the sound discretion of the trial
judge.” Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa.Super.2012)
(quoting Commonwealth v. Merbah, 411 A.2d 244, 247 (Pa.Super.1979)).
“The underlying reason for excluding certain items from the jury’s
deliberations is to prevent placing undue emphasis or credibility on the
material, and de-emphasizing or discrediting other items not in the room
with the jury.” Id. (quoting Commonwealth v. Dupre, 866 A.2d 1089,
1103 (Pa.Super.2005)).
Appellant requested that Captain Stetler’s report be sent to the jury.
The court denied this request, noting only portions of the report were read
into the record. N.T., 2/19, at 167-68. Appellant also requested that a
document he wrote to the superintendent be sent to the jury, and the trial
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court denied the request because it would place undue emphasis on the
exhibit. Id. at 168-69.19 The trial court did not abuse its discretion in
denying Appellant’s request to send exhibits with the jury, and this claim is
frivolous.
Appellant’s last claim maintains the evidence was insufficient to
support the verdict and the verdict is against the weight of the evidence.
Anders Brief at 13.
We apply the following standard when reviewing a sufficiency of the
evidence claim: “[W]hether 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.” Commonwealth v. Lehman, 820 A.2d 766, 772
(Pa.Super.2003), affirmed, 870 A.2d 818 (2005) (quoting Commonwealth
v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we apply this
standard, “we may not weigh the evidence and substitute our judgment for
the fact-finder.” Id.
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Lehman, 820 A.2d at
772. Moreover, “[a]ny doubts regarding a defendant’s guilt may be resolved
____________________________________________
19
The trial court agreed with Appellant that, under its reasoning, it would
deny Appellant’s request to send any document to the jury. N.T.,
2/19/2013, at 369-70. Appellant noted his objection for the record. Id. at
370.
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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.” Id. “The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Id.
In applying the above test, we must evaluate the entire record and we
must consider all evidence actually received. DiStefano, 782 A.2d at 582.
Further, “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.” Id.
A jury convicted Appellant of aggravated assault of a correctional
officer. To sustain an aggravated assault of a correctional officer conviction,
the Commonwealth must establish the appellant “attempt[ed] to cause or
intentionally or knowingly cause[d] bodily injury to [an officer or employee
of a correctional institution], in the performance of duty.” 18 Pa.C.S. §
2702(a)(3). Bodily injury is defined as “[i]mpairment of physical condition
or substantial pain.” 18 Pa.C.S. § 2301. Here, Correctional Officer Todd
Kepner testified that, while working in the restrictive housing unit of SCI
Coal Township, Appellant punched him in the jaw. N.T., 2/15/2013, at 94,
96. Officer Kepner experienced redness and pain in the jaw. Id. at 99. The
jury was entitled to believe Correctional Officer Kepner’s testimony, which
was sufficient to establish the elements of aggravated assault beyond a
reasonable doubt. Commonwealth v. Richardson, 636 A.2d 1195, 1196
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(Pa.Super.1994) (evidence sufficient where officer testified Appellant’s punch
broke officer’s glasses, caused officer to stumble backwards, and caused
pain for next few days). Appellant’s sufficiency of the evidence claim is
frivolous.
Whether a verdict is against the weight of the evidence is “addressed
to the discretion of the trial court.” Commonwealth v. Clay, 64 A.3d 1049,
1054-55 (citing Commonwealth v. Widmer, 744 A.2d 745, 751–52
(2000)). “A new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would have arrived at
a different conclusion. Rather, ‘the role of the trial judge is to determine
that notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all the facts is
to deny justice.’” Id. at 1055 (quoting Widmer, 744 A.2d at 752). Courts
should award “a new trial . . . when the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to prevail.” Id.
(quoting Commonwealth v. Brown, 648 A.2d 1077, 1189 (Pa.1994)).
Further, “[a]ppellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence.” Clay, 64 A.3d at 1055 (quoting
Widmer, 744 A.2d at 753). “Because the trial judge had the opportunity to
hear and see the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial judge when
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reviewing a trial court’s determination that the verdict is against the weight
of the evidence.” Id. (quoting Widmer, 744 A.2d at 753).
The jury heard testimony from 17 witnesses, including the victims of
the alleged assaults, eyewitnesses, and the investigating officer. It viewed
32 exhibits, including witness statements and videotape recordings depicting
the events. The trial court found the verdict not against the weight of the
evidence. Opinion, 1/6/2014, at 7. The trial court acted within its discretion
and Appellant’s weight of the evidence claim is frivolous.
Our independent review of the record reveals no additional non-
frivolous claims.
Case remanded for the filing of an advocate’s brief consistent with this
memorandum. Counsel shall file the advocate’s brief within 45 days of the
issuance of this opinion. The Commonwealth shall have 30 days from the
filing of Appellant’s brief to file an Appellee’s brief. Jurisdiction retained.
President Judge Gantman joins in the memorandum.
Judge Mundy concurs in the result.
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