Com. v. Drummond, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHEEM JAMES DRUMMOND :
:
Appellant : No. 1219 MDA 2018
Appeal from the Judgment of Sentence Entered June 13, 2018
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000984-2017
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 15, 2019
Rasheem James Drummond appeals from the judgment of sentence
imposed following his jury trial conviction of robbery and possession of a
firearm without a license. We affirm.
Appellant and his victim, Cheng You, a Ph.D. student at Penn State,
originally from China, met via the dating app Grindr. 1 They exchanged
messages via Grindr for several weeks, at which point they decided to meet.
Mr. You drove from State College to Harrisburg, where they met in a Rite Aid.
At Appellant’s request, Mr. You had brought sixty dollars in cash along to split
the cost of a hotel room if things went well.
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1 Grindr is a dating app which markets itself as “the world’s #1 FREE mobile
social networking app for gay, bi, trans, and queer people to connect.” See
Google Play,
https://play.google.com/store/apps/details?id=com.grindrapp.android&hl=e
n, last accessed 10/24/19.
* Retired Senior Judge assigned to the Superior Court.
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Initially, the meeting went well; however, after Appellant attempted to
get a room at two hotels, and found both to be too expensive, Mr. You decided
to go home. Appellant gave Mr. You thirty dollars back, and told him that he
would return the rest after Mr. You drove Appellant home.
When they arrived, Appellant went into the residence, then returned to
the car where Mr. You was waiting for the remainder of his money back.
Appellant climbed into the passenger’s seat of the car, aimed a gun at Mr. You
and demanded the remainder of Mr. You’s cash and his cell phone. After
receiving the cash and phone, Appellant exited the car and ran. Mr. You
attempted to chase Appellant to recover his phone for directions home;
however, when he approached, Appellant hit him in the head with the pistol
and fled. A bystander called 911, police arrived and ultimately arrested
Appellant.
Prior to trial, Appellant challenged his competency to stand trial. At the
hearing, the competency evaluator stated that Appellant was able to
understand the charges against him, but concluded that he was incompetent
to stand trial because he was not able to participate in his defense. The trial
court however, found that Appellant was manipulative in order to receive what
he wanted and made conscious choices to act the way in which he did.
Therefore, the court found Appellant competent to stand trial.
Appellant filed his first pro se correspondence complaining about the
performance of Erin Hayes, Esq., his court appointed attorney, in August 2017.
That next month, in September, the court granted Attorney Hayes’s petition
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to withdraw and appointed Jennifer Tobias, Esq., as conflict counsel. One
month later, Appellant sent a pro se correspondence to the court complaining
about the performance of Attorney Tobias. Three months later, in January
2018, the court granted Attorney Tobias’s petition to withdraw, and appointed
David Hoover, Esq., to represent Appellant.
Three months after that, and shortly before trial was to begin, Appellant
claimed that he had irreconcilable differences with Attorney Hoover. After
calling Appellant’s sister and grandmother, at Appellant’s request, to inquire
as to whether they were coordinating retaining private counsel (they were
not), the trial court denied Appellant’s right to a continuance of the trial date
and appointed Attorney Hoover as standby counsel during trial.2
The jury found Appellant guilty of robbery and carrying a firearm without
a license. The trial court denied Appellant’s post-trial motions. This timely
appeal followed.
Appellant raises seven issues on appeal.
A. Whether the [trial] court erred in allowing Appellant’s trial
counsel, attorney David Hoover, to act as standby counsel after
granting attorney Hoover’s motion to withdraw?
B. Whether the [trial] court erred in denying Appellant’s request
for new appointment of counsel at trial?
C. Whether the [trial] court erred in denying Appellant’s request
for a continuance of his trial date after Appellant’s appointed
counsel was granted permission to withdraw?
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2The court appointed new counsel to represent Appellant for his post-sentence
motions and his direct appeal.
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D. Whether the Commonwealth failed to present sufficient
evidence to sustain Appellant’s conviction for carrying a firearm
without a license?
E. Whether the [trial] court erred in finding Appellant competent
to stand trial at Appellant’s competency hearing?
F. Whether the [trial] court erred in denying Appellant’s post-
sentence motion where the Commonwealth failed to present
sufficient and weighty evidence to sustain Appellant’s convictions?
G. Whether Appellant’s waiver of his right to testify was not
knowing, voluntary, or intelligent?
Appellant’s Brief, at 8 (questions re-ordered for ease of disposition;
unnecessary capitalization omitted).
In his three first issues, Appellant challenges the trial court’s decision to
grant Attorney Hoover’s request for permission to withdraw from
representation.3 Specifically, he claims that granting counsel permission to
withdraw, without appointing a new, fourth counsel, or granting a continuance
of the trial date to permit him to retain private counsel, resulted in his being
denied his right to counsel. In addition, he claims that his waiver of his right
to counsel was not knowing, intelligent, or voluntary. See Appellant’s Brief, at
24-31. We disagree.
“A question regarding whether a due process violation occurred is a
question of law for which the standard of review is de novo and the scope of
review is plenary.” Commonwealth v. Harris, 200 A.3d 524 (Pa. Super.
2018) (citation omitted). Appointment of counsel however, is within the
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3We discuss Appellant’s first three issues together for ease of disposition, and
note that Appellant likewise combined these issues in his brief.
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discretion of the trial court, as such we review such appointment for an abuse
of discretion. See Pa.R.Crim.P. 121(D). Finally, granting or denying a
continuance request is also within the discretion of the trial court. See
Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013).
“The Sixth Amendment to the United States Constitution provides that
in all criminal prosecutions, the accused shall enjoy the right to have the
assistance of counsel for his or her defense.” Commonwealth v. Lucarelli,
971 A.2d 1173, 1178 (Pa. 2009) (citations omitted). However, an accused
also enjoys the right to self-representation, and may either waive or forfeit
his right to counsel. See id. at 1179. “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. (citations and internal quotation marks omitted). Finally,
“Pa.R.Crim.P. 121(D) authorizes a judge to appoint standby counsel when it
determines that a defendant appropriately waives the right to counsel.” Pub.
Defender’s Office v. Venango Cty. Court of Common Pleas, 893 A.2d
1275, 1281 (Pa. 2006).
In Commonwealth v. Thomas, this Court found that the appellant
forfeited his right to counsel through a pattern of misconduct including threats,
abuse, and failure to collaborate in his defense. See 879 A.2d 246, 258 (Pa.
Super. 2005). There the trial court had appointed five different attorneys to
represent the appellant. See id.
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Presently, Appellant engaged in a similar course of misconduct and
dilatory conduct. Attorney Hoover, the third attorney appointed to represent
Appellant, requested to withdraw his appearance because Appellant
repeatedly accused him of being a racist and refused to meet with him to
prepare for trial. See N.T. Hearing, 4/18/18, at 9-10, 13. In addition, based
on its observations of Appellant throughout the pre-trial process, the trial
court found that Appellant had a history of disruptive behavior as a method of
delaying proceedings. See N.T. Hearing, 1/23/18, at 10-11.4 Upon review, we
similarly conclude that Appellant forfeited his right to counsel based on his
misconduct and extremely dilatory conduct. Accordingly, the trial court did not
err when it granted Attorney Hoover permission to withdraw.
We also conclude that the trial court did not abuse its discretion when it
appointed Attorney Hoover as standby counsel. Attorney Hoover was familiar
with the case, and ready to proceed to trial, whereas appointing a new standby
attorney would cause a lengthy delay for that attorney to become ready to
render assistance. Moreover, we note that the trial court appointed new
counsel immediately after trial for all post-trial representation.
Finally, we conclude that the trial court did not abuse its discretion when
it denied Appellant’s requested continuance. Appellant demonstrated a history
of manipulative behavior to delay trial. Therefore, the court was well within
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4During the hearing, the Commonwealth explained that in one of Appellant’s
previous trials in federal court, Appellant had gone through eleven different
defense attorneys in a similar delay of proceedings. See N.T. Hearing,
4/18/18, at 4.
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its authority to deny Appellant’s continuance requested on the eve of trial.
Appellant’s first three issues are meritless.
In his fourth issue, Appellant challenges the sufficiency of the evidence
presented to support his conviction of carrying a firearm without a license.
Specifically, he claims that the Commonwealth failed to prove that Appellant
either concealed the firearm, or carried the firearm in a vehicle. We disagree.
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 [finder] of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Best, 120 A.3d 329, 341 (Pa. Super. 2015) (quotations
and citations omitted).
In relevant part, section 6106(a)(1) of the Crimes Code provides that:
[A]ny person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person, except in
his place of abode or fixed place of business, without a valid and
lawfully issued license under this chapter commits a felony of the
third degree.
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18 Pa.C.S.A. § 6106(a)(1).
Here, the Commonwealth presented evidence that after returning to Mr.
You’s car and climbing into the passenger seat, Appellant pulled out a gun and
demanded money, threatening to shoot Mr. You. Mr. You testified that he did
not see Appellant carrying anything while he walked up to the car, and that
after he handed over his money and phone, Appellant ran out of the car. See
N.T. Trial, 4/23/18, at 150-52.
Accordingly, viewing all evidence in the light most favorable to the
Commonwealth as verdict winner, as we are required to do by our standard
of review, we conclude that the Commonwealth introduced sufficient evidence
to prove Appellant’s guilt. Based on Mr. You’s testimony, it is a reasonable
inference that Appellant both concealed the firearm on his person while
walking to the car, and that he had been in the vehicle when he threatened
Mr. You. Therefore, Appellant’s fourth issue is meritless.
In his fifth issue, Appellant claims that the trial court erred when it found
him competent to stand trial. Specifically, Appellant asserts that Brett
DiGiovanna, M.D., opined that although Appellant was able to understand the
nature of the proceeding, he was unable to participate and assist in his own
defense. Consequently, Appellant argues that Dr. DiGiovanna’s testimony, in
addition to Appellant’s “self-sabotaging behavior,” required the trial court to
find him incompetent to stand trial. Appellant’s Brief, at 37; see id. at 35-37.
We disagree.
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A defendant is presumed competent and it is his burden to show
otherwise, the determination of which is within the sound
discretion of the trial court. When a competency hearing takes
place, incompetency may be established by a preponderance of
the evidence. The sensitive nature of competency determinations
requires the appellate courts to afford great deference to the
conclusions of the trial court, which has had the opportunity to
observe the defendant personally. When the record supports the
trial court’s determination, we will not disturb it.
Commonwealth v. Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013)
(citations omitted).
In order to rebut the presumption that he is competent, a defendant
must prove by a preponderance of the evidence that he “was either unable to
understand the nature of the proceedings against him or to participate in his
own defense.” Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004)
(citation omitted).
Here, the trial court stated:
While we note that the results of [Appellant’s] competency
evaluation found him competent under only one prong of the test,
we stand by our decision ruling that [Appellant] was competent. .
. . During [Appellant’s] competency evaluation, he was able to
give coherent accounts of the alleged charges against him. More
importantly, it was clear to this court that it was possible that
[Appellant] made a conscious choice to present himself as
incompetent. More specifically, when the competency evaluator
provided in his report that he believed that all of the subjective
information provided by [Appellant] had questionable validity.
Multiple times throughout the hearing and the competency report,
it was made apparent that [Appellant] could be manipulative in
order to receive what he wanted, exaggerate his symptoms and
exaggerate his situation. Most importantly, Dr. Martin’s [another
mental health professional whose impressions Dr. DiGiovanna
relied upon in his expert report] opinion regarding [] Appellant’s
competency very clearly indicated that [] Appellant attempts to
game the system to get what he wants.
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Trial Court Opinion, 12/18/18 at 8 (record citations, quotation marks, and
unnecessary capitalization omitted).
Upon review, we conclude that the record supports the trial court’s
determination that Appellant was competent to stand trial. Appellant’s
disruptive behavior at select times, such as passing the prosecutor an
envelope of feces during a pretrial hearing, see N.T. Hearing, 4/19/18, at 4,
and professional behavior at others, such as his general professionalism while
representing himself pro se during trial, see generally N.T. Trial, 4/23/18;
N.T. Trial, 4/24/18, demonstrate his attempts to manipulate the system. The
trial court had copious reasons to find that Appellant had not met his burden
of proving his incompetence. Appellant’s fifth issue is meritless.
In his sixth issue, Appellant challenges the weight of the evidence to
support his conviction.5 Specifically, he argues that because of inconsistent
testimony and incredible witnesses, the evidence was so weak and
inconclusive that the verdict was against the weight of the evidence. We
disagree.
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. 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
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5 Neither the question presented nor the discussion portion of Appellant’s brief
specifies whether Appellant is challenging the weight of the evidence to
support his robbery or carrying a firearm conviction. However, in his concise
statement of errors complained of on appeal, Appellant specifically claims that
the verdict for the charge of robbery was contrary to the weight of the
evidence. Accordingly, we limit our discussion to the robbery charge.
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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.
It has often been stated that a new trial should be awarded 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.
Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014) (citations and
quotation marks omitted). “One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a new trial should be granted
in the interest of justice.” Id.
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not cognizable
on appellate review.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations
omitted).
Here, after a two-day trial, the jury found Appellant guilty of robbing
Mr. You. Upon review, the trial court opined that there were not glaring
abnormalities from Appellant’s trial such that the verdict would shock one’s
sense of justice. We find no abuse of discretion in the trial court’s denial of
Appellant’s challenge to the weight of the evidence. Appellant’s sixth issue is
meritless.
Finally, in his seventh issue, Appellant claims that his waiver of his right
to testify at trial was not knowing, intelligent, or voluntary. He argues that
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based on his alleged incompetence, he was not able to knowingly, intelligently,
and voluntarily waive his right to testify. See Appellant’s Brief, at 42-45. We
disagree.
“The right of an accused to testify on his own behalf is a fundamental
tenet of American jurisprudence and is explicitly guaranteed by Article I,
Section 9 of the Pennsylvania Constitution.” Commonwealth v. Nieves, 746
A.2d 1102, 1105 (Pa. 2000) (citation omitted). “As this is an issue involving
a constitutional right, it is a question of law; thus, our standard of review is
de novo, and our scope of review is plenary.” Commonwealth v. Baldwin,
58 A.3d 754, 762 (Pa. 2012) (citation omitted).
Here, Appellant’s argument is essentially a renewed claim that the trial
court should have found him incompetent to stand trial. This claim is belied
by the record, where, after Appellant clearly stated that he did not intend to
testify, the trial court conducted a full colloquy ensuring that Appellant
understood his right and was waiving his right to testify knowingly,
intelligently, and voluntarily. See N.T. Trial. 4/23/18, at 180-82. Appellant
initially claimed that he lacked competence to make a knowing and intelligent
waiver; however, after consulting with standby counsel, clearly stated that he
did not want to testify. See id. at 184. To the extent that Appellant again
claims he was incompetent to make legal decisions, we again conclude the
trial court did not err or abuse its discretion in finding that Appellant’s claimed
incompetence merely reflected his attempts to manipulate the system.
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Upon review, we conclude that Appellant’s constitutional right not to
testify was not infringed upon. The record reflects that after discussing the
matter with standby counsel, Appellant made a knowing, intelligent, and
voluntary waiver of his right to testify. See id. at 180-82, 184. Accordingly,
Appellant’s final claim is meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2019
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