Com. v. Zhao, W.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WEIWU ZHAO, : No. 2862 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered December 18, 2017,
in the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-CR-0000665-2016
BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: July 23, 2020
Weiwu Zhao appeals from the December 18, 2017 judgment of sentence
entered in the Court of Common Pleas of Northampton County following his
conviction in a jury trial of sexual abuse of children (dissemination of
photographs, videotapes, computer depictions and films depicting a child
under the age of 18 years engaging in prohibited sexual act); sexual abuse of
children (child pornography); criminal use of communication facility; and
obscene and other sexual materials and performances (selling, lending,
distributing, transmitting, exhibiting, giving away or showing any obscene
materials to a person 18 years of age or older).1 The trial court imposed an
aggregate sentence of 48 to 180 months of imprisonment. We affirm.
1 18 Pa.C.S.A. §§ 6312(c), 6312(d), 7512(a), and 5903(a)(2), respectively.
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The facts giving rise to appellant’s convictions are not germane to this
appeal. Suffice it to say that appellant was found to have possessed 14 videos
on his computer that depicted girls under the age of 13 being sexually
assaulted by adult males, including forcible rape and penetration with foreign
objects.
Following imposition of sentence, appellant filed a timely post-sentence
motion, which the trial court denied. Appellant then filed a notice of appeal,
which this court docketed at No. 1679 EDA 2018. On March 4, 2019, this
court dismissed appellant’s appeal for failure to file a brief. Thereafter, the
trial court granted appellant PCRA2 relief and reinstated his direct appeal rights
nunc pro tunc. Appellant filed a notice of appeal.3 The trial court ordered
appellant to file a concise statement of errors complained of on appeal
2 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
3 We note that the trial court permitted appellant to file a direct appeal
nunc pro tunc within 60 days of its order granting PCRA relief. (Order of
court, 8/14/19.) The note to Pennsylvania Rule of Criminal
Procedure 720(A)(2) provides that a PCRA petitioner who is granted leave to
appeal nunc pro tunc must comply with the 30-day appeal period provided
in Rule 720(A). Appellant filed his notice of appeal on September 27, 2019,
which was outside of the 30-day appeal period set forth in Rule 720(A), but
within the 60-day appeal period set forth in the trial court’s order. In
accordance with our supreme court’s per curiam order in Commonwealth v.
Miller, 824 A.2d 298 (Pa. 2003), we will not quash this appeal because
appellant filed his notice of appeal within the 60-day period allotted in the trial
court’s August 14, 2019 order. See id. (vacating superior court’s quashal
order for violation of Rule 720(A) where PCRA court afforded petitioner
60 days to file appeal). The Miller per curiam order provided no rationale for
permitting the PCRA court to provide 60 days for the filing of a direct appeal
nunc pro tunc. Presumably, the court granted relief based on a breakdown
in the operation of the PCRA court by providing an improper appeal instruction.
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pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial court
then filed a Rule 1925(a) statement wherein it relied on the opinion it filed
when it denied appellant’s post-trial motions.
Appellant raises the following issues for our review:
[1.] [Whether t]he trial court erred in holding that
[a]ppellant forfeited his right to counsel at
trial[?]
[2.] [Whether t]he trial court erred in holding that
[a]ppellant waived his right to counsel at trial[?]
3. Because [a]ppellant was not represented by
counsel, [whether a]ppellant’s failure to make
objections and raise legal issues at trial did not
waive his right to raise these issues on appeal
and to seek remand[?]
Appellant’s brief at 10.4
Appellant’s issues involve his constitutional right to counsel under the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution
and Article I, Section 9 of the Pennsylvania Constitution. Where an issue
involves a constitutional right, it is a question of law. Commonwealth v.
Baldwin, 58 A.3d 754, 762 (Pa. 2012). As with all questions of law, our
standard of review is de novo and our scope of review is plenary. Id.
Appellant first complains that the trial court erred in finding that
appellant forfeited his right to counsel.
4 We have reordered appellant’s issues for ease of disposition.
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In Commonwealth v. Lucarelli, 971 A.2d 1173 (Pa. 2009), our
supreme court made a clear distinction between waiver of counsel and
forfeiture of counsel. Waiver occurs when the defendant knowingly and
voluntarily relinquishes his right to counsel while forfeiture results when a
defendant’s conduct is abusive, threatening, or extremely dilatory. Id. at
1179-1180. Where forfeiture is found, Pennsylvania Rule of Criminal
Procedure 121 and its colloquy requirements for waiver of counsel do not
apply. Id. at 1179.
The facts of Lucarelli are instructive. There, the defendant had the
financial means to retain private counsel, fired several lawyers that he had
hired, was afforded over eight months to prepare for trial, and then appeared
at trial without an attorney or an explanation as to why counsel was not
present. Id. at 1180. On discretionary review, our supreme court flatly
rejected Luccarelli’s claim that the Commonwealth was required to
demonstrate that he “‘knowingly and intelligently’ engaged in conduct that
had the inevitable effect of impairing his constitutional right to counsel.” Id.
at 1179. Rather, our supreme court held that “where a defendant’s 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, a determination that the defendant be required to proceed pro se is
mandated because that defendant has forfeited the right to counsel” and
Rule 121 and its colloquy requirements do not apply. Id. at 1179.
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Here, the record reflects that appellant was arraigned on April 28, 2016.
On the same date, Hala Tahan Khouly, Esq., filed an entry of appearance on
appellant’s behalf. Although the record is unclear as to the circumstances of
Attorney Khouly’s withdrawal from representation, it reflects that
Attorney Khouly was the first of three lawyers that appellant had privately
retained and then fired. (Notes of testimony, 9/15/17 at 7, 9; see also notes
of testimony, 10/20/17 at 11.)
The second attorney to enter an appearance on appellant’s behalf was
Kevin Santos, Esq., who did so on May 6, 2016. At that point, appellant’s trial
had been scheduled to begin on July 5, 2016. In order to accommodate
appellant’s computer expert, and at appellant’s request, the trial court
thereafter granted two continuances.
On March 3, 2017, the trial court held a hearing on Attorney Santos’s
motion to withdraw because appellant requested that he withdraw. At this
juncture, we note that the record reflects that at all of the proceedings that
were stenographically recorded and included in the certified record before us,
Aixue Wang, an interpreter, was present to translate as needed by appellant.
At the hearing, the following colloquy took place:
THE COURT: All right. [Appellant], you don’t want
Mr. Santos to represent you anymore?
[APPELLANT]: Yes.
THE COURT: Okay. Is it your intention to hire new
counsel, sir?
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[APPELLANT]: Yes.
THE COURT: Do you know who you’re going to hire?
[APPELLANT]: I still haven’t found one now [sic].
Notes of testimony, 3/3/17 at 2.
THE COURT: Well, [appellant], you have the right to
have a lawyer of your own choice. If you don’t want
Mr. Santos, that’s fine with me. But I’m going to be
very clear with you, sir. I postponed your case several
times at your request as a result of motions that you
have filed and your attorney, Mr. Santos, asked for
additional time as a result of some of those requests
and you got it.
I’m not postponing this trial again. It’s been
postponed. Your trial is June 5th. And that is
happening. So you have the right to counsel. You can
hire new counsel if you wish. If you cannot afford
counsel, you can apply for a public defender. If you
meet their criteria, a lawyer will be appointed to
represent you free of charge but it’s your
responsibility to do those things. And you should do
these things in short order because I’m not delaying
your trial again.
And I can’t act on any motions that you have filed until
you are represented. Or the other option that you
have you can represent yourself, which is not a smart
thing to do, but it’s your right to do if you want to.
So if you don’t want Mr. Santos to represent you,
that’s fine. I’m going to let him out of the case. But
I’m going to schedule a conference in ten days and I
want to know in ten days if you’re representing
yourself, if you have a public defender, or if you have
a lawyer. Do you understand?
[APPELLANT]: I understand.
Id. at 4-5.
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On April 19, 2017, Robert Marc Gamburg, Esq., entered his appearance
on appellant’s behalf. Although the reason is unclear from the record before
us, it does indicate that at that point, trial was rescheduled to begin on July 31,
2017. On June 30, 2017, a pre-trial conference was held. At the
Commonwealth’s request, the case was continued until October 30, 2017. The
trial court then scheduled appellant’s omnibus pre-trial motions to be heard
on September 15, 2017.
On the date set for omnibus pre-trial motions, the trial court also heard
Attorney Gamburg’s motion to withdraw. At the hearing, Attorney Gamburg
explained that appellant filed a pro se motion5 and that he “received an e-mail
from [appellant] and his family instructing [him] to move to withdraw as
counsel.” (Notes of testimony, 9/15/17 at 2-3.) The record reflects that when
the trial court repeatedly asked appellant if he wanted Attorney Gamburg to
represent him, appellant would not answer the question. (Id. at 3-8.) The
following took place:
THE COURT: Okay. Stop. [Appellant is] arguing
some of his omnibus pretrial motions now. Before we
get to that, I need to know if [appellant] still wants
Mr. Gamburg to represent him. Tell him to calm down
and stop yelling.
[APPELLANT:] I don’t need him to represent me.
Id. at 8.
5 The record reflects that appellant filed several pro se motions while he was
represented by counsel.
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The trial court then permitted Attorney Gamburg to withdraw, and the
following then took place:
THE COURT: Is it your intention to hire new counsel
or to act as your own lawyer?
[APPELLANT]: I myself am not a lawyer. And I have
no right to apply to deliver myself and apply for myself
to the qualifications of a lawyer. Even if that were
true, I’ll still consider to have a lawyer. But in view of
the fact that in the past all the three lawyers I hired
to present [sic] me, so I would be very cautious for
me to hire another lawyer.
Id. at 9.
The trial court then rescheduled the hearing on omnibus pretrial motions
to be heard on September 27, 2017. On September 25, 2017, the trial court
appointed Alex Karam, Esq., as stand-by counsel for appellant. At the
September 27, 2017 hearing, appellant appeared without legal counsel.
Attorney Karam, however, appeared as appointed stand-by counsel. At the
hearing, the trial court noted that appellant had subpoenaed Northampton
County President Judge Stephen Baratta to appear and testify. (Notes of
testimony, 9/27/17 at 3.) Appellant was then provided with a copy of Judge
Baratta’s order quashing the subpoena. (Id. at 3-4.) Thereafter, appellant
was provided with a waiver of counsel form. (Id. at 4.) Appellant stated that
he was unable to read the form. (Id.) The trial court afforded Mr. Wang, the
interpreter, time to read the form to appellant and to make sure that appellant
understood the form. (Id. at 4, 7.) The trial court also explained to appellant
that it appointed Attorney Karam as appellant’s stand-by counsel, not because
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it believed appellant was indigent, but because of the seriousness of the
charges. (Id. at 5-6.) Appellant acknowledged that he understood
Attorney Karam’s role. (Id. at 6.)
With respect to the waiver of counsel form, the following took place:
THE COURT: . . . Sir, did I give you an unlimited
amount of time to read the form to [appellant]?
THE INTERPRETER: Yes.
THE COURT: You read the form to him in its entirety;
correct, sir?
THE INTERPRETER: Yes, I did.
THE COURT: I would first like to discuss the contents
of the form, then I’ll address his question.
[Appellant], that form reiterates discussions I’ve had
with you on the record on two prior occasions about
your right to counsel, including most recently a very
lengthy and detailed discussion on September 15th
when you fired Mr. Gamburg and I discussed with you
your right to hire counsel of your choosing at that time
and on one prior occasion.
And I discussed with you your right to apply to have
a free attorney appointed for you through the Public
Defender’s Office. And I informed you very carefully
that I would not delay today’s hearing or your trial if
you did not hire counsel.
You can hire a lawyer whenever you want. But I’m
not giving any further continuances on anything
because there have been too many. I have appointed
Mr. Karam to be of assistance to you out of courtesy
to protect your rights.
The form that the interpreter just read to you reduces
everything that we have previously discussed to
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writing and further informs you of your rights. Do you
understand?
[APPELLANT]: I understand.
THE COURT: Will you sign the form?
[APPELLLANT]: I’ll not sign right away.
THE COURT: Okay. Then give me the form.
Mr. Karam, bring it up to me, please. I’m admitting it
as Court 1. He can continue.
[APPELLANT]: I don’t need the help of an attorney
right now based on the amendment six of our
constitution. I’ll pronounce my desire to hire an
attorney.
THE COURT: Is that it?
[APPELANT]: Yes.
THE COURT: Okay. The waiver of counsel form is
admitted as Court 1. Let the record reflect that it has
been read to [appellant] by the interpreter with an
unlimited amount of time provided by the Court for
that to take place. [Appellant] has refused to sign it.
Okay.
Id. at 7-9. The omnibus pre-trial motions hearing then proceeded. At its
conclusion, the trial court again cautioned appellant
that he does not have a clue what he is doing with
respect to representing himself. And while he has the
right to represent himself here in court now and at the
time of trial, he has that right, [it is the trial court’s]
personal belief if he chooses to represent himself at
trial it will be a disaster. But [the trial court has]
discussed that with him several times and he can do
whatever he wants.
But [the trial court is] going to hold him to the
standard of an attorney and he is only going to be
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permitted to ask legally appropriate questions and he
will follow [the trial court’s] instructions. Does he
understand?
[APPELLANT]: I understand.
THE COURT: He has the option of using Mr. Karam as
his lawyer if he wants to. He can confer with
Mr. Karam at any time or he can go hire someone.
But I don’t think he should do it himself. Okay?
[APPELLANT]: I heard that.
Id. at 61-62.
On October 20, 2017, the trial court held a pretrial hearing at which
time it
emphasize[d] again to [appellant], as [it had]
discussed with him many times previously and [as it
cannot] stress it enough, he should hire counsel. And
if he cannot afford counsel, he should apply to the
Public Defender’s Office.
Because he does not know what he’s doing. And he’s
going to do himself an incredible disservice in this
matter by acting as his own lawyer.
And he’s going to cause prejudice to himself from a
legal standpoint, but I discussed that with him at least
four other times. And he’s fired three lawyers.
Notes of testimony, 10/20/17 at 11.
At the beginning of trial on October 30, 2017, appellant appeared
without counsel and requested a continuance, which the trial court denied.
(Notes of testimony, 10/30/17 at 2.) The trial court explained that if appellant
wanted a lawyer, Attorney Karam was ready to represent him. (Id.) The trial
court also explained to appellant that he had two choices: to represent himself
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or have Attorney Karam represent him. The record reflects that appellant
responded, while seated in a chair with his back facing the trial court, as
follows: “I cannot represent myself, nor would I like Mr. Karam to represent
me.” (Id. at 3-4.)
The record is clear that appellant’s course of conduct demonstrated his
intention to not seek representation by private counsel. Appellant had the
financial means to privately retain three lawyers, all of whom he fired.
Appellant was afforded several continuances and had approximately
18 months to prepare for trial. When he appeared at trial, appellant arrived
without counsel and requested another continuance. Although appellant
forfeited his right to counsel, requiring him to proceed pro se and abrogating
the need for a Rule 121 colloquy, the trial court made sure that stand-by
counsel was available to appellant. Appellant’s complaint that the trial court
erred in determining that appellant forfeited his right to counsel lacks merit.
In light of our disposition on this issue, we need not address appellant’s
second issue.
In his final issue, appellant claims that because he was not represented
by counsel, his failure to preserve appellate issues in the trial court should be
excused. Appellant requests a remand so he can raise numerous issues with
the trial court. In support, appellant relies on Commonwealth v. Monica,
597 A.2d 600, 603 (Pa. 1991), wherein our supreme court recognized the
“general rule [that] failure to raise an issue in a criminal proceeding does not
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constitute waiver where the defendant is not represented by counsel in the
proceeding.” (Appellant’s brief at 17, n.8); see also Monica, 597 A.2d at
603. Appellant, however, ignores that part of Monica that held that the
general rule does not apply when a defendant waives his right to counsel. Id.;
see also Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa.Super. 2017).
Certainly, then, the general rule does not apply where, as here, a defendant
forfeits his right to counsel and is required to proceed pro se.
With respect to pro se litigants, we note that it is well settled that while
a pro se litigant is granted the same rights, privileges, and considerations as
those accorded a party represented by counsel, pro se status does not entitle
the litigant to any particular advantage because he or she lacks legal training.
See Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa.Super. 1996).
Accordingly, "a pro se litigant must comply with the procedural rules set forth
in the Pennsylvania Rules of the Court." Commonwealth v. Lyons, 833 A.2d
245, 252 (Pa.Super. 2003) (citation omitted).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/20
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