Com. v. Walters, J.

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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES WALTERS
Appellant No. 735 MDA 2016
Appeal from the Judgment of Sentence March 30, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP- 06 -CR- 0002768 -2011
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 17, 2017
James Walters appeals from the judgment of sentence entered in the
Court of Common Pleas of Berks County following his conviction for fleeing
or attempting to elude a police officer' and driving while operating privilege
is suspended or revoked.2 Upon review, we affirm.
On June 4, 2011, at approximately 3:00 a.m., Police Officer Peter
O'Brien saw Walters traveling south on State Route 222 in a minivan.
Officer O'Brien observed Walters cross the fog line at least three times and
make a drastic overcorrection each time. Officer O'Brien suspected that
Walter was intoxicated, and he activated his lights and sirens in order to
' 75 Pa.C.S. § 3733(a).
2 75 Pa.C.S. § 1543(b)(1).
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stop him. Walters continued to drive at the same speed. Officer O'Brien
used his spotlights and intercom system to direct Walters to pull over, but
Walters continued driving. Eventually, Officer O'Brien overtook Walters' van
and forced him off the road. Thereafter, criminal charges were filed against
Walters.
On February 16, 2016, after 32 continuances, four lawyers and
approximately four years, the trial court conducted a status hearing in
response to a motion filed by Walters' counsel, Kevin Wray, Esquire, seeking
to withdraw from the case. The court denied the motion and advised
Walters that the case would go to trial on March 29, 2016. At trial, Walter
appeared without Attorney Wray. Walters indicated that Attorney Wray was
no longer associated with him and that he had fired Attorney Wray. The
court denied Walters' request for a continuance, finding that Walters had
forfeited his right to counsel. Standby counsel was appointed and Walters
proceeded pro se. Following the jury trial, Walters was found guilty of the
aforementioned offenses. The jury found Walters not guilty of driving under
the influence.
On March 30, 2016, the court sentenced Walters to 133 days to 23
months' incarceration and a fine of $2,500 for the eluding police conviction.
On April 13, 2016, following a timely post- sentence motion, the judgment of
sentence was modified to reduce the fine to $500. Walters filed a timely
notice of appeal and court -ordered concise statement of errors complained
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of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Walters raises the
following issues for our review:
1. Whether the trial court erred in requiring Appellant James
Walters to represent himself pro se at a jury trial when he
had hired a private attorney, Attorney Kevin Wray, when said
attorney failed to appear on the day of trial despite being
instructed that his petition to withdraw was denied and that
he was to continue to represent [Walters] through trial,
unless another attorney entered his /her appearance and that
any consent by [Walters] to the withdrawal of Attorney
Wray's appearance on [the] day of trial was not knowing,
intelligent and voluntary and a violation of his 6th Amendment
right to counsel pursuant to the federal constitution and
Article 1 Section 9 of the Pennsylvania Constitution.
2. Whether the trial court erred in failing to instruct the jury on
the defenses to fleeing and eluding pursuant to 75 Pa.C.S.A.
[ §] 3733(c)(1) and (c)(2), which are complete defenses and
part of the standard jury instruction where there was
testimony regarding the late hour, a single driver, that he was
unsure that it was in fact an actual police officer, that there
was glass and other items on the side of the road making it
unsafe to pull over, coupled with his failure to evade the
police and then coming to a stop when he felt there was a
safe place to do so, making the defenses applicable subject to
credibility and factual determinations for the jury to consider
and then accept or reject.
3. Whether the trial court erred in failing to order a new trial
upon post sentence motion[,] as the verdict shocked the
conscience and was insufficient as a matter of law[,] since the
evidence to support the conviction for [f]leeing and [e]luding
was lacking in that [Walters] did not increase speed or exit
the roadway at approved exits or [commit] any other evasive
maneuvers, [and the evidence] did not establish that he
willfully failed to respond to any signal to stop[,] coupled with
his good faith concern for his personal safety.
Brief for Appellant, at 5.
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We note that although a criminal defendant has the right to be
represented by counsel, the right can be waived or forfeited; a defendant
forfeits his or her right to counsel where his or her conduct results in a
sequence of dilatory dismissals of counsel and withdrawals of counsel. See
Commonwealth v. Coleman, 905 A.2d 1003, 1006 -08 (Pa. Super. 2006)
(holding right to counsel forfeited where defendant (1) continuously
dismissed and substituted counsel or appeared pro se; (2) was capable of
retaining counsel for his or her defense; and (3) refused to heed trial court's
warning that trial would commence on date certain, with or without
representation by counsel). Further, where the right to counsel is forfeited
by a defendant, the trial court is not obliged to conduct a waiver of counsel
colloquy with the defendant before requiring the defendant to proceed to
trial pro se. Id. at 1008.
The posture of the instant matter mirrors that of Coleman, in that
prior to his actual trial, Walters had proceeded to the eve of trial multiple
times, with multiple counsel, only to request a continuance each time. As
the trial court noted,
[Walters'] conduct can be described as nothing but dilatory.
Before the case was assigned to this trial judge, [Walters'] had
been granted more than thirty continuances and had been
represented by four different attorneys. [Walters'] modus
operandi was to disagree with his lawyers to the point of
prompting them to file a motion to withdraw, which allowed
[Walters] to further delay the proceedings while seeking to hire
another lawyer. [Walters] requested continuances for counsel
status twenty times. His case had been listed for disposition six
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times. It was continued once due to [Walters'] request for a
bench trial, and jury trials had been scheduled multiple times.
Trial Court Opinion, 6/7/16, at 3. Ultimately, the court informed Walters
that his trial would proceed on March 29, 2016, whether or not he had an
attorney. Walters appeared that day without his attorney and stated he had
fired him. Thus, the trial took place with Walters representing himself and
with standby counsel appointed. Under the circumstances, we conclude that
the court did not err requiring Walters to proceed pro se. Coleman, supra.
Next, Walters asserts that the trial court erred by not instructing the
jury as to the defenses to fleeing or attempting to elude police, claiming that
he was unsure that he was being pulled over by an actual police officer, that
glass and debris were on the side of the road, and that he stopped when he
felt it was safe to do so.
The record reveals that the trial judge gave the standard jury
instruction regarding fleeing or attempting to elude police. No objection was
made to this instruction, nor was a request made for the judge to instruct
the jury regarding defenses to the crime. We note that the fact that Walters
was proceeding pro se is not relevant in this regard, since pro se defendants
are held to the same standards as licensed attorneys. See Commonwealth
v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) ( "pro se status confers no
special benefit upon a litigant, and a court cannot be expected to become a
litigant's counsel "). Accordingly, the court did not err in not instructing the
jury as to the defenses to fleeing or attempting to elude police.
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Finally, Walters asserts that the evidence was insufficient to convict
him of fleeing or attempting to elude police.3 In considering sufficiency of
the evidence claims,
we must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in the
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where . . .
there is sufficient evidence to enable the trier of fact to find
every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
Of course, the evidence established at trial need not preclude
every possibility of innocence and the fact -finder is free to
believe all, part or none of the evidence presented.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).
A driver is guilty of fleeing or eluding police when he "willfully fails or refuses
to bring his vehicle to a stop, or . . . otherwise flees or attempts to elude a
pursuing police officer, when given a visual and audible signal to bring the
vehicle to a stop[.]" 75 Pa.C.S. § 3733.
Here, Walters baldly argues that the fact that he did not increase his
speed or exit the roadway at approved exits demonstrates that he did not
willfully fail to stop or respond to a signal from police. However, Walters
fails to provide any legal authority to support his claim that the mere fact
that he did not speed up indicates that he did not willfully fail to stop.
3 In his brief, Walters asserts that the verdict shocks the conscience, which
implies a weight of the evidence claim. However, to the extent the claim is
developed, it is focused on a lack of evidence that he willfully failed to stop
his vehicle.
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Moreover, Officer O'Brien testified that that he used not only his lights and
siren to signal to Walters to pull over, but also used his spotlight and
intercom system to communicate to Walters to stop. Officer O'Brien was
also in a clearly marked police vehicle. Additionally, we note that Walters
continued to drive for at least two -and -one -half miles after Officer O'Brien
activated his lights and sirens and had to be forced off the roadway.
Accordingly, we find that sufficient evidence was presented to show that
Walters was guilty of fleeing a police officer. Watley, supra.
Judgment of sentence affirmed.
Judgment Entered.
J:seph Seletyn,
D.
Prothonotary
Date: 1/17/2017
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