Com. v. Manning, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
EUGENE DOUGLAS MANNING
Appellant No. 2003 MDA 2015
Appeal from the Judgment of Sentence May 15, 2013
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001169-2012
CP-28-CR-0001173-2012
CP-28-CR-0001674-2011
BEFORE: BOWES, PANELLA AND JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2016
Eugene Douglas Manning appeals pro se from the judgment of
sentence of seventy-two to 144 months imprisonment that was imposed
after he was convicted of two counts of stalking and twenty-eight counts of
harassment by anonymous communication. We affirm.
This appeal involves three criminal actions that were consolidated for
purposes of trial. At 1674 of 2011, Appellant was charged with stalking
Pamela Ross. Appellant was arrested for that offense on September 7,
2011, and, after his September 13, 2011 release on bail, Appellant did not
contact Ms. Ross again until April 30, 2012, when he called her twice. On
May 1, 2012, and May 2, 2012, Appellant sent the victim numerous text
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messages. These 2012 actions resulted in an additional stalking charge
leveled against him at criminal case number 1169 of 2012, and, at criminal
action number 1173 of 2012, twenty-eight counts of harassment by
anonymous communication.
The facts underlying Appellant’s convictions follow. In June, 2011,
Appellant went to the Center for Dermatology (the “Center”) in
Chambersburg, Pennsylvania, due to the existence of lumps on his back. He
was seen by Ms. Ross, who was a board-certified physician’s assistant. On
July 21, 2011, Ms. Ross removed a cyst from Appellant’s back using local
anesthetic. On the discharge form, Appellant was told to call Ms. Ross’ cell
phone number in the event that complications arose after the out-patient
surgery, and he received an appointment to have sutures removed on
August 4, 2011. Ms. Ross’s cell phone was utilized on the Center form
because the business did not have an answering service at that time. That
procedure was altered due to Appellant’s subsequent behavior toward Ms.
Ross.
After another office employee removed his sutures on August 2, 2011,
Ms. Ross examined the surgical site to ensure that the wound was healed.
The June, July, and August office visits were the extent of Ms. Ross’ direct
contact with Appellant. In August 2011, Appellant began to send letters
nearly every day to the Center, and they were addressed to Ms. Ross. In
one, Appellant called the victim “a true life queen” and said that her
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“husband must wait at the door for [her] to get home.” N.T. Trial, 3/12/13,
at 50. After she received the second letter, Ms. Ross advised her office
manager about the situation, and the Center notified Appellant that he was
discharged as a patient and told him not to contact Ms. Ross “in any way.”
Id. at 55.
Appellant continued to send Ms. Ross letters at the Center and also
mailed her a twig and a CD. The letters, introduced as exhibits, were
rambling, strange, and indicated that Appellant was in love with Ms. Ross
and believed that he and Ms. Ross were involved in a relationship with each
other. The communications rendered the victim fearful for both her safety
and that of her husband and four children.
Appellant also kept a notebook, which was recovered pursuant to a
search warrant. It was titled, “Gene and his Little Pammy and a Life Lesson
of What True Love really is, and how God meant us to Love. I Love you
Pamela, Love your outlaw Stalker, Gene.” Commonwealth’s Exhibit 20 at 1
(emphasis in original). The notebook contained rambling diatribes similar to
the one on the cover. For example, Appellant reported that he was madly in
love with Ms. Ross, considered her his soul mate, pleaded with her to
divorce her husband for him, and said that he knew that one day he and Ms.
Ross would become involved in a romantic relationship.
Since Appellant did not desist in sending letters, on August 23, 2011,
Ms. Ross contacted police about the situation. Two Chambersburg police
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officers personally discussed the matter at length with Appellant and told
him to stop contacting Ms. Ross. Instead of heeding the officers’ warning,
Appellant began to telephone Ms. Ross, and he left eight or nine messages
on her cell phone. The victim contacted the police, who listened to the
messages and verified that they were from Appellant. Based upon his
behavior toward Ms. Ross in August, 2011, Appellant was arrested for
stalking on September 7, 2011, and he was released on bail on September
13, 2011. One of the conditions of his release was that he have “no contact
with the victim or victims in person, by mail or telephone.” Id. at 67.
Upon his release, Appellant initially did not contact Ms. Ross, but he
then defied the condition by twice telephoning her on April 30, 2012. On
May 1, 2012, and May 2, 2012, Appellant sent the victim twenty-eight
bizarre and rambling text messages. Appellant repeatedly asked the victim
to contact him and referred to her as “baby.” Commonwealth Exhibit 5. Ms.
Ross called the police and contacted her cell phone provider to block calls
from Appellant’s phone number.
At trial, Appellant, who was proceeding pro se,1 called Dr. Joanna
Brady as a witness. She told the jury that, after she saw Appellant
professionally as a patient, he sent her flowers and left multiple
inappropriate messages on her telephone. In response to a question by
____________________________________________
1
The status of Appellant’s legal representation is discussed infra.
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Appellant about how the messages were inappropriate, Dr. Brady
responded: “You would leave messages where you breathed heavily, where
you threatened to kill me, where you threatened to hurt my family. You
threatened to kill my husband. You sent letters that contained the same.”
N.T. Trial, 3/13/13, at 187-88.
After a three-day trial, a jury convicted Appellant of all counts in the
three criminal actions, and he was sentenced on May 15, 2013, to seventy-
two to 144 months incarceration. Appellant filed a pro se direct appeal, and
was ordered to file a Pa.R.A.P. 1925(b) statement. He never complied with
that directive. After protracted proceedings, which are described in detail
infra as they are pertinent to the central issue involved in this appeal, the
Commonwealth moved to have that appeal dismissed based upon Appellant’s
failure to file a Pa.R.A.P. 1925(b) statement. We dismissed the appeal on
February 24, 2015. Appellant then filed a timely pro se PCRA petition on
September 17, 2015. After a hearing, the trial court reinstated Appellant’s
right to a direct appeal on October 26, 2015, and this pro se appeal followed
on November 13, 2015.
Appellant’s Pa.R.A.P. 2116 Statement of Questions Involved spans
eight pages and raises about twenty-six issues:
1. Whether it was an abuse of discertion [sic] or error of law by
the trial court, and whether Mr. Manning was denied his right to
counsel pursuant to the Sixth and Fourteenth Amendments of
the Federal Constitution and pursuant to Article 1 section 9 of
the Pennsylvania Constitution of the right to counsel by failing to
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conduct the required on -the -record waiver of counsel colloquy
to be certain Mr. Manning's waiver of counsel was knowing,
voluntary and intelligent, pursuant to Pa.R.Crim.P. 120, 121,
122, to permit Mr. Manning to proceed pro se:
A. Throughout all pretrial critical stages of the criminal
proceedings.
B. Jury selection.
C. A jury trial.
D. A jury trial for misdemeanors and felony charges which Mr.
Manning faced substantial prison sentences.
E. Sentencing to imprisonment.
F. Post sentence motions stage.
2. Whether the Commonwealth of Pennsylvania criminal stalking
statute and laws are unconstitutional, facially overbroad, facially
vague, or were so overbroad and vague as applied to Mr.
Manning's conduct, and whether the stalking statute and laws
permit and or promote arbitrary and or discriminatory
enforcement or were so as applied to Mr. Manning's conduct, and
criminalized non criminal conduct as applied to Mr. Manning. In
violation of Mr. Manning's Federal First amendment and
Pennsylvania Constitution Article 1., section 7 of the right to
legitimate freedom of speech ,expression, association, the
freedom to think and feel privately. In violation of the Federal
Ninth amendment against ex post facto laws, Federal Fourteenth
amendment of due process. In violation of the Pennsylvania
Constitution, Article 1 section 1. and the right to privacy, Article
1 section B against unreasonable searches and seizures and
rights of privacy. In violation of Article 1 section 9 due process,
in violation of Article 1 section 17 ex post facto clause.
3. Whether the sentences are illegal, unconstitutional, and
whether the trial court abused its discretion or committed error
of law sentencing Mr. Manning to prison for:
A. Mandatory minimum sentences.
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B. Non statutory aggravating factors.
C. Aggravating factors not submitted to the factfinder, jury.
D. Resentencing Mr. Manning for 2003 -2004 cases.
E. Impermissable [sic] sentencing factors, sex crimes,
constitutionally protected conduct, activity, freedom of speech,
expression, association, authorized conduct, legitimate doctor-
patient medical appointment, legitimate communication, non
communication, non criminal conduct, activity, petitioning the
courts for redress of grievances.
4. Whether it was an abuse of discretion or error of law by the
trial court in charging the jury with improper jury instructions:
A. "Now ordinarily, it is not possible to prove intent" "knowledge
or what someone is thinking, what purpose they have, and
whether this instruction lowered the Commonwealth's burden of
proof, shifting the burden onto Mr. Manning to prove innocence
or non specific intent to commit stalking and harassment.
B. Submitting jury verdict slips to the jury that permitted a
finding of guilt based on speculation, suspicion, conjecture,
constitutionally protected conduct, proper legal, authorized
activity, conduct, legitimate freedom of speech, expression,
association, legitimate communication, non communication, non
criminal conduct.
5. Whether it was an abuse of discretion or error of law by the
trial court to permit over Mr. Manning's objections, the highly
prejudicial, irrelevant, hearsay testimony by the alleged victim
Mrs. Ross that her son had nightmares that a faceless Mr.
Manning killed his baby sister.
6. Whether the [C]ommonwealth failed to prove each element
of the crimes against Mr. Manning beyond a reasonable doubt,
specific intent, non legitimate communication, and whether the
evidence was insufficient to prove guilt, and whether it was an
abuse of discretion or error of law by the trial court to deny Mr.
Manning's motion to dismiss the charges.
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7. Whether it was an abuse of discretion or error of law by the
trial court to permit the Commonwealth to introduce prior bad
acts from 2003, 2004, and to permit known false testimony,
perjury from a witness that in 2003, 2004 Mr. Manning treatened
[sic] to kill her, her husband and hurt her family. This witness
was Mrs. Brady. Mr. Manning objected.
B. Whether Mr. Mannìng was illegally, unconstitutionally arrested
without arrest warrants, or defective invalid arrest warrants.
9. Whether the Commonwealth of Pennsylvania Rules of Criminal
Procedure 513 are unconstitutional, or were so as applied to Mr.
Manning, or were the rules not properly followed as; The affiant
of the police criminal complaint, probable cause affidavit for
count 1674 -2011 was not required to appear in person or to
swear and or affirm his statements in the affidavit in person
before the issuing authority to have the complaint approved.
And whether the affidavits of probable cause for counts 1674 -
2011, 1169- 2012, 1173 -2012 failed to set-forth any criminal
allegations, and whether the issuing authority abandoned his
nuetral [sic] and detached role in approving the complaints and
or arrest warrants.
10. Whether it was an abuse of discretion or error of law by the
trial court to deny Mr. Manning's motions to suppress the
evidence searched and seized from the Waite residence on June.
13, 2012, denyiing [sic] Mr. Manning standing to challenge, and
wheteher [sic] the search warrant lacked probable cause, was
defective, overbroad, violated Mr. Manning's right's [sic] of
privacy, and whether the issuing authority abandon his nuetral
[sic] and detached role in issuing the warrant.
11. Whether it was an abuse of discretion or error of law by the
trial court, over Mr. Manning's objections, to deny Mr. Manning
his right to call witness in his favor by quashing the jury trial
subpoena to Dr. Muhkerjee, a psychiatrist who could have
explained the evidence searched and seized from the Waite
residence, Mr. Manning's private thoughts, feelings, writings,
diaries and journals.
12. Whether it was an abuse of discretion or error of law by the
trial court, over Mr. Manning's objections to quash the trial
subpoenas to Mrs. Ross and Dr. Epstein, and two exculpatory
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eyewitnesses who could have offered substantial impeachment
value testimony against Mr. Manning's accuser Mrs. Ross.
13. Whether it was an abuse of discretion or error of law by the
trial court to deny Mr. Manning his right to call witnesses in his
favor by quashing the trial subpoena to Mrs. Ross when the trial
court told Mr. Manning he would be able to call Mrs. Ross later
for questioning for his case in chief.
14. Whether it was presecutorial [sic] misconduct, overreaching
by the prosecutor to permit and elicit known false testimony and
perjury from a witness, Mrs. Brady regarding prior bad acts, that
in 2003, 2004 Mr. Manning threatened to kill Mrs. Brady, her
husband, and hurt her family.
15. Whether the Commonwealth of Pennsylvania harassment
statute and laws are unconstitutional, facially overbroad, facially
vagues [sic], or were so overbroad and vague as applied to Mr.
Manning's counduct [sic], and whether the harassment statute
and laws permit and or promote arbitrary and or discriminatory
enforcement or were so as applied to Mr. Manning's conduct, and
criminalize non criminal conduct as applied to Mr. Manning, as
26 counts of harassment against the Center for Dermatology,
count 1173 -2012 required no victim, no testimony from anyone
,and there was no actual communication with anyone, no
messages left.
Appellant’s brief at 3-10.
Despite this expansive Pa.R.A.P. 2116 statement, the argument
portion of Appellant’s brief is actually divided into three parts: 1) pages
sixteen to thirty-five are devoted to a position that he was improperly denied
his right to counsel since he never was afforded a Pa.R.Crim.P. 121 colloquy
at his jury trial; 2) at pages thirty-five to seventy-three, Appellant claims
that the criminal stalking statute is unconstitutional as overbroad and vague;
and 3) his final averment, leveled at pages seventy-three to eighty of the
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brief, is that the harassment statute is unconstitutionally vague and
overbroad. The only arguments that we will address are those advanced in
the argument portion of Appellant’s brief. Commonwealth v. Jackson,
431 A.2d 944, 945 n.1 (Pa. 1981) (where issue presented in the “Statement
of Questions Involved” section of defendants brief was not addressed in “the
‘Argument’ portion of his brief,” it was waived); accord Commonwealth v.
Jones, 815 A.2d 598, 604 n. 3 (Pa. 2002); Pa.R.A.P. 2119(a) (“The
argument shall be divided into as many parts as there are questions to be
argued; and shall have at the head of each part--in distinctive type or in
type distinctively displayed--the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.”).
Appellant first claims that he is entitled to a new trial because the trial
court did not provide a waiver-of-counsel colloquy at the time of trial.
Appellant’s brief at 16 (Appellant was deprived of his right to counsel “as his
trial counsel Brian Williams was permitted to withdraw and the trial court
failed . . . . to conduct the required on-the-record waiver of counsel
colloquy”). Initially, we note that this position was never raised at any point
in the trial-court proceedings and, instead, was presented for the first time
in Appellant’s Pa.R.A.P. 1925(b) statement. Nevertheless, we hesitate to
find the issue waived since in Commonwealth v. Davido, 868 A.2d 431(Pa. 2005), our Supreme Court stated it is the trial court’s responsibility to
sua sponte ensure that a valid waiver-of-counsel colloquy is performed.
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Due to the serious nature of the failure to conduct a waiver-of-counsel
colloquy, we set forth the tortured procedural history of Appellant’s
representation during these cases. At criminal action number 1674 of 2011,
the first one filed, Appellant claimed indigence following his arrest and was
granted court-appointed counsel. After Appellant obtained bail, that
appointment was revoked by a September 13, 2011 order wherein the
Honorable Douglas W. Herman, stated: “[T]he Public Defender’s Officer was
appointed to represent the within defendant while in jail but he is no longer
in jail, therefore, IT IS ORDERED that the appointment of the Public
Defendant is rescinded and the defendant will need to reapply for
representation.” Order of Court, 9/13/11, at 1 (emphasis added). This
order was served on Appellant personally.
Appellant did not reapply for appointed counsel. On November 16,
2011, Appellant executed a statement of rights wherein he was told, “You
have a right to be represented by counsel. You have the right to have an
attorney appointed to you free of charge if you cannot afford to employ
one.” Statement of Rights, 11/16/11, at 1. On December 19, 2011,
Appellant appeared pro se before the trial court for a call of the list. At that
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time, Appellant executed a written waiver-of-counsel form that was fully
compliant with Pa.R.Crim.P. 1212 in that it stated:
____________________________________________
2
That rule states:
(1) The defendant may waive the right to be represented by
counsel.
(2) To ensure that the defendant's waiver of the right to counsel
is knowing, voluntary, and intelligent, the judge or issuing
authority, at a minimum, shall elicit the following information
from the defendant:
(a) that the defendant understands that he or she
has the right to be represented by counsel, and the
right to have free counsel appointed if the defendant
is indigent;
(b) that the defendant understands the nature of the
charges against the defendant and the elements of
each of those charges;
(c) that the defendant is aware of the permissible
range of sentences and/or fines for the offenses
charged;
(d) that the defendant understands that if he or she
waives the right to counsel, the defendant will still be
bound by all the normal rules of procedure and that
counsel would be familiar with these rules;
(e) that the defendant understands that there are
possible defenses to these charges that counsel
might be aware of, and if these defenses are not
raised at trial, they may be lost permanently; and
(f) that the defendant understands that, in addition
to defenses, the defendant has many rights that, if
not timely asserted, may be lost permanently; and
(Footnote Continued Next Page)
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1. I understand that I have the right to be represented by an
attorney, and have a right to a free attorney if I cannot afford
to employ an attorney of my choosing.
2. I understand the nature of the charges against me and the
elements of each of these charges.
3. I understand the permissible range of sentences and/or fines
which may be imposed for the offense for which I am charged.
4. I understand that if I waive my right to an attorney and
proceed today, I will still be bound by all the normal rules of
procedure and that an attorney appointed for me or hired by
me would be familiar with these rules.
5. I understand that there may be possible defenses to these
charges which an attorney might be aware of, and if these
defenses are not raised at trial, they may be lost forever.
6. I understand that I have many additional rights which if not
timely raised may be lost forever.
7. I understand that if errors occur in my case that are not timely
objected to or otherwise timely raised by me, the ability to
address these errors with the court may be lost permanently.
Waiver of Counsel Pursuant to Pa.R.Crim.P. 121, 12/19/11, at 1.
Appellant then asked for a continuance of his trial date, which had
been scheduled for January 9, 2012, and requested that it be moved to
March 12, 2012. The application for continuance was executed by Appellant,
_______________________
(Footnote Continued)
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).
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the Commonwealth, and Judge Herman, and, in it, Appellant indicated that
he needed time to prepare for trial. The Commonwealth reports that, when
Appellant asked for a continuance and executed the Pa.R.Crim.P. 121 written
waiver, “an on-the-record waiver of counsel colloquy pursuant to
Pa.R.Crim.P. 121 was performed.” Commonwealth’s brief at 3. See
Pa.R.Crim.P. 121(B) (“When the defendant seeks to waive the right to
counsel after the preliminary hearing, the judge shall ascertain from the
defendant, on the record, whether this is a knowing, voluntary, and
intelligent waiver of counsel.”).
Appellant does not dispute the accuracy of the Commonwealth’s
representation that Judge Herman conducted an on-the-record oral waiver
colloquy on December 19, 2011. Since Appellant failed to obtain a
transcription of the December 19, 2011 proceeding, we cannot
independently confirm that this colloquy occurred. We therefore are
compelled to recite the following regarding Appellant’s capacity to order
transcripts.
After Appellant filed his first appeal, he presented a petition for
records. As requested in that document, Judge Herman ordered
transcription of: a May 8, 2012 bail hearing, a July 3, 2012 pretrial and bail
reduction hearing, an October 2, 2012 hearing on Appellant’s suppression
motion, an October 24, 2012 continued suppression hearing, a January 25,
2013 Pa.R.Crim.P. 600 hearing, a February 21, 2013 hearing on Appellant’s
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various pre-trial motions, the March 11, 2013 jury selection, all three days
of the jury trial, and the May 15, 2013 sentencing hearing. Appellant
thereafter asked for and obtained a transcript of a December 28, 2012 pre-
trial conference.
Appellant filed yet another motion for transcripts, asking for
transcription of an October 26, 2012 call-of-the-list proceeding. Appellant
also demanded a copy of the docket entries at all three case numbers.
Judge Herman granted these two requests, and a transcript of the October
26, 2012 call-of-the-list was filed, and Appellant was disseminated copies of
the docket entries for all three matters. The docket entries for 1674 of 2011
clearly show the filing of the written waiver of counsel on December 19,
2011, and indicate that there was a call of-the-list proceeding conducted on
that date.
Despite being aware of the procedure to obtain transcripts, having
notice of the December 19, 2011 call-of-the-list proceeding and filing of the
written waiver of counsel, and having ordered transcription of a different
call-of-list proceeding, Appellant never asked for the notes of testimony from
the hearing held before Judge Herman on December 19, 2011. Thus, we
have no hesitation in accepting the Commonwealth’s representation that
Judge Herman, concomitant with obtaining a written waiver, did conduct an
oral colloquy on December 19, 2011. Furthermore, it was Appellant’s
responsibility to ensure that the transcript was part of the record.
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Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (“Our law is
unequivocal that the responsibility rests upon the appellant to ensure that
the record certified on appeal is complete in the sense that it contains all of
the materials necessary for the reviewing court to perform its duty.”).
The history of Appellant’s representation at case numbers 1169-2012
and 1173 of 2012 follows. After those 2012 charges were filed, Appellant
was appointed counsel, Scott J. Thomas, from the public defender’s office.
On July 25, 2012, Mr. Thomas filed a motion to suppress evidence, wherein
he challenged the sufficiency of a warrant used to search the home of people
to whom Appellant had given materials related to his stalking of Ms. Ross.
On August 1, 2012, private counsel, Brian Oliver Williams, Esquire, entered
his appearance. On October 2, 2012, Mr. Williams filed a petition to
withdraw indicating that Appellant had fired him, and the motion was
granted on October 16, 2012. Appellant proceeded to represent himself at
trial, which was presided over by Judge Herman.
After Appellant was convicted and sentenced, he filed a timely pro se
appeal. We remanded for the conduct of a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), which holds,
“When a waiver of the right to counsel is sought at the post-conviction and
appellate stages, an on-the-record determination should be made that the
waiver is a knowing, intelligent, and voluntary one.” That hearing was held
before Judge Herman on July 11, 2013, and Judge Herman indicated he
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ascertained that Appellant wanted to proceed pro se and knowingly and
voluntarily waived his right to counsel. Appellant asked for and obtained a
copy of the transcript of that hearing.
On March 27, 2014, after filing a number of pro se motions with the
trial court, Appellant then asked for the appointment of counsel. David
Breschi, Esquire, was appointed, and, after Mr. Breschi moved to withdraw,
Matthew Karasic, Esquire, was appointed. Thereafter, private counsel, Scott
Nathan Pletcher, Esquire, entered his appearance. After Mr. Pletcher moved
to withdraw, a second Grazier hearing was held on August 27, 2014, before
Judge Herman. At that hearing, Judge Herman ascertained that Appellant
did not want to proceed pro se but actually wanted court-appointed counsel
so Kristopher Accardi, Esquire, was appointed to represent Appellant.
After the previous appeal was dismissed, Mr. Accardi moved to
withdraw. This matter was re-assigned to the Honorable Angela R. Krom,
who conducted another Grazier hearing and concluded that after “extensive
discussion with the Defendant, the Court determines that he has in fact,
waived his right to counsel and will proceed to represent himself.” Order of
Court, 8/5/15, at 1. Appellant asked for and obtained a copy of a transcript
of that Grazier hearing.
Appellant then filed a pro se PCRA petition, and, at a hearing on that
petition, Mr. Accardi appeared. Judge Krom again colloquied Appellant and
ascertained that he wanted to proceed pro se. After that hearing, Appellant
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obtained reinstatement of his appellate rights, and this pro se appeal
followed.
On appeal, Appellant faults the trial court, Judge Herman, with failing
to conduct a Pa.R.Crim.P. 121 colloquy at the beginning of trial, after
Appellant’s private counsel, Mr. Williams, asked to withdraw after Appellant
fired him.3 As noted, under Davido, supra, the trial court must sua sponte
conduct such a colloquy. However, Judge Herman had presided over the
December 19, 2011 proceeding, and knew that a waiver colloquy was
conducted then. There is no case law to support the notion that a judge is
required to conduct two Pa.R.Crim.P. 121 colloquies. Appellant was fully
apprised on December 19, 2011, of the ramifications of his desire to proceed
pro se, and Judge Herman did not have to repeat information already
disseminated to Appellant.
In addition, in light of Appellant’s behavior herein, we agree with
Judge Krom’s and the Commonwealth’s position that Commonwealth v.
Lucarelli, 971 A.2d 1173 (Pa. 2009), applies in this case. Therein, our High
Court made a clear distinction between waiver of counsel and forfeiture of
counsel. Waiver is present when the defendant knowingly and voluntarily
relinquishes his right to counsel while forfeiture occurs when a defendant’s
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3
Judge Krom prepared the Pa.R.A.P. 1925(a) opinion in this matter. She
acknowledged that a colloquy was not performed prior to trial, but did not
realize that Judge Herman conducted one on December 19, 2011.
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conduct is abusive, threatening, or extremely dilatory. Id. “Pa.R.Crim.P.
121 and its colloquy requirements do not apply to situations where forfeiture
is found.” Id. at 1179.
The Lucarelli Court concluded that the defendant therein forfeited his
right to counsel, obviating the need for a Pa.R.Crim.P. 121 colloquy, based
upon obstructive conduct sufficient to be characterized as extremely dilatory.
Specifically, Lucarelli had the financial means to secure private counsel, fired
several lawyers that he hired, was accorded over eight months to prepare
for trial, and then appeared at trial without an attorney or an explanation for
why counsel was not present. Our Supreme Court reversed our decision to
grant Lucarelli a new trial due to the trial court’s failure to conduct any
Pa.R.Crim.P. 121 colloquy, ruling that the colloquy was not required since,
based upon his conduct, Lucarelli forfeited his right to counsel. See also
Commonwealth v. Coleman, 905 A.2d 1003 (Pa.Super. 2006).
As the above-procedural history demonstrates, Appellant initially had
an appointed lawyer in all three cases, hired and then fired private counsel,
asked to proceed pro se on numerous occasions, was given a Pa.R.Crim.P.
121 colloquy once prior to trial and three times after trial, retracted his
request to represent himself after receiving one of those hearings, thereafter
obtained a series of appointed lawyers, and then demanded to proceed pro
se again.
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In addition to this conduct with respect to representation, the record is
replete with evidence of other obstructionist behavior by Appellant.
Appellant’s pro se filings are so voluminous that they fill a large box. Some
of the pro se documents were presented while Appellant was represented by
counsel, and they are largely indecipherable. Appellant was openly rude to
Judge Herman at various points during these proceedings, reported him to
the Judicial Conduct Board, and called him corrupt. Prior to trial, Appellant
obtained a plethora of subpoenas, the vast majority of which were quashed
after the people subpoenaed petitioned the court. Specifically, the quashed
subpoenas were issued to: a member of the Office of Disciplinary Counsel,
the entire Judicial Conduct Board, the Clerk of Courts of Franklin County,
The Pennsylvania State Board of Medicine, a state senator, the mayor of
Chambersburg, four magisterial district judges, two health care providers,
nine correctional officers, the local warden and deputy wardens, the health
providers for the Franklin County jail, and the Franklin County
Commissioners and Administrator.
At trial, Appellant continuously interrupted both Judge Herman and the
district attorney, even during closing arguments. He attempted to file a
private criminal complaint raising perjury charges against Dr. Brady after her
testimony at his trial. Appellant also moved to have the Franklin County
District Attorney’s Office disqualified from prosecuting him, and filed a
disciplinary action against Mr. Williams, who represented him for only two
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months. Appellant’s behavior in this matter is far and above more
obstructionist and abusive than that analyzed in Lucarelli, and we find it
applicable herein. Simply put, the absence of a Pa.R.Crim.P. 121 colloquy
after Mr. Williams was fired does not entitle Appellant to a new trial.
Appellant’s other two contentions on appeal are that the stalking and
harassment statutes are unconstitutional. We find Appellant’s position as to
the unconstitutionality of these statutes to be so rambling and confusing as
to be virtually indecipherable. In Ibn–Sadiika v. Riester, 551 A.2d 1112,
1114 (Pa.Super. 1988), we ruled that “when an appellant fails to carry
forward, or is indecipherably vague in, argumentation upon a certain point in
his appellate brief, that point is waived.” Accord Commonwealth v.
Gooding, 649 A.2d 722 (Pa. Super. 1994). That precept certainly applies
herein.
Moreover, in Commonwealth v. Schierscher, 668 A.2d 164(Pa.Super. 1995), we ruled that the crimes of harassment and stalking,
which were previously contained in a single statute, were not
unconstitutionally vague and that they did not violate a person’s first
amendment rights to free speech. We also note that Appellant raises a
claim that he had no notice that his behavior was criminal. The record belies
this position. The Center and the police both informed Appellant that he was
to stop contacting the victim, and he continued to do so. Additionally, as a
condition of his bail in the first action filed herein, he was ordered not to
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contact the victim. Appellant, after a brief respite, began to stalk and harass
his victim again. For the foregoing reasons, we reject Appellant’s challenges
to the constitutionality of the stalking and harassment statutes.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2016
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