Com. v. Sewell, L.

J-A06030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEON SEWELL :
:
Appellant : No. 178 WDA 2022
Appeal from the Judgment of Sentence Entered January 5, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004754-2020
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED: JUNE 12, 2023
Appellant Leon Sewell appeals from the judgment of sentence imposed
following his conviction for criminal trespass and related offenses. Appellant
challenges the sufficiency of the evidence and argues that the trial court erred
in denying his request to proceed pro se. We affirm.
The trial court summarized the underlying facts of this matter as follows:
[Appellant] and Sandra Harness (referred to herein as “the
victim”) were former paramours who were no longer together due
to the fact that the victim had obtained a Protection From Abuse
[(PFA)] order prohibiting [Appellant] from being [at the victim’s
residence] due to a prior violent incident between [Appellant] and
the victim.
Trial Ct. Op., 6/30/22, at 2.
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* Retired Senior Judge assigned to the Superior Court.
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At trial, the victim testified that on May 21, 2020, she was awakened by
Appellant attempting to open her bedroom window, which was on the second
floor of her residence. N.T. Trial, 9/14/21, at 47-48. The victim stated that
after she told Appellant to leave, Appellant entered through the window,
shattering the glass. Id. After Appellant entered the victim’s residence, the
trial court explained:
[Appellant] pushed [the victim] down on her bed. He placed his
hand on her neck and began squeezing. He kept telling her to
“shut-up.” She was unable to fight him off. [Appellant] pushed
the victim down the steps from the second floor to the first floor.
When she got to the first floor, [Appellant] ordered her to open
the back door. The alarm in the residence activated and
[Appellant] screamed at the victim to turn it off. Acting as though
she was going to the front door to deactivate the alarm, she
quickly opened the door and ran to a neighbor’s house where her
neighbor called 911. During the incident, [Appellant] grabbed the
victim’s cell phone from her hand and threw it. After the incident,
she was unable to find her phone. The phone was eventually
found in the chimney of the house. The victim suffered injuries to
her neck and hand during the incident. Police officers immediately
responded to the scene. Officers observed broken glass around
the second-floor window and the window was broken out. There
was a ladder propped up against the exterior of the house.
Trial Ct. Op., 6/30/22, at 2 (some formatting altered).
Following the incident, the Commonwealth charged Appellant with
aggravated assault, strangulation, burglary, theft by unlawful taking, criminal
trespass, and defiant trespass.1
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1 18 Pa.C.S. §§ 2702(a)(1), 2718(a)(1), 3502(a)(1)(i), 3921(a),
3503(a)(1)(ii), and 3503(b)(1)(i), respectively.
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Prior to trial, Appellant filed a pro se motion to replace his trial counsel
with another court-appointed attorney. See Appellant’s Motion to Replace
Counsel, 11/10/20. Therein, Appellant stated that trial counsel was
“ineffective, not trustworthy” and that trial counsel had failed to communicate
with Appellant’s family. Id. at 2. The trial court did not rule on Appellant’s
motion.
On January 24, 2021, Appellant filed a motion seeking to waive his right
to counsel and proceed pro se. At a hearing on February 2, 2021, Appellant
reiterated that he was dissatisfied with trial counsel, wished to invoke his right
to self-representation, and believed that he would be “better off” without
counsel. N.T. Hr’g, 2/2/21, at 5, 17. After the trial court questioned Appellant
about the quality of trial counsel’s representation, the trial court concluded
that Appellant had failed to demonstrate that trial counsel “was not doing his
job.” Id. at 17. The trial court then attempted to dissuade Appellant from
proceeding pro se by asking a series of questions concerning Appellant’s
knowledge of the criminal court system. Id. at 17-18; 24-32.
At one point during the hearing, Appellant asked the trial court: “Why
can’t I get a court appointed attorney or get me a bond and I can go out there
and go to work and buy me an attorney?” Id. at 21. In response, the trial
court stated: “[Appellant], this isn’t Let’s Make a Deal. This isn’t Judge Judy
or Judge Jerry or whatever the heck those shows are. This is real court. So
what I am suggesting to you is refocus and accept the fact that you have an
experienced trial lawyer who is doing his job . . . .” Id.
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Ultimately, the trial court concluded:
THE COURT: You don’t know the basic things that are involved
in your case. You don’t know any of that. I can’t let you do it. I
can’t. If you get a bad result and appeal, the Superior Court would
say to me, did you go to law school, Judge. You let this guy do
this when he proved he doesn’t know what he’s doing?
Did you even go to law school, Judge? Maybe you studied
pharmacy. You didn’t go to law school. That’s what the Superior
Court would tell me. They would say it nicer than that, but that’s
what they would tell me. So, no, I can’t let you do it. You have
demonstrated your lack of ability to proceed on your own behalf.
You have also failed to demonstrate that [trial counsel] isn’t doing
his job. Consequently, your motion to represent yourself is
denied. [Trial counsel] is your lawyer. Work with him.
Reevaluate your position and work with him, and we will see you
all in April [for] the status conference. We are done.
Id. at 31-32 (formatting altered).
On March 16, 2021, Appellant filed a second pro se motion to replace
trial counsel with another court-appointed attorney. Therein, Appellant
reiterated his dissatisfaction with trial counsel’s representation. The trial court
did not rule on Appellant’s motion. On April 9, 2021, trial counsel filed a
motion to withdraw stating that there had been “an irretrievable breakdown
in the attorney-client relationship.” Petition to Withdraw, 4/9/21. The trial
court denied trial counsel’s motion.
The matter proceeded to a jury trial on September 14, 2021. Ultimately,
the jury found Appellant guilty of criminal trespass, theft, and defiant trespass,
but not guilty on the remaining charges. On January 5, 2022, the trial court
sentenced Appellant to an aggregate term of thirty-six to eighty-four months’
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incarceration. Appellant filed timely post-sentence motions, which the trial
court denied.
Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)
opinion addressing Appellant’s claims.
On appeal, Appellant raises the following issues for review:
1. Is Appellant entitled to a new trial . . . when he was forced to
proceed to trial before a jury while represented by counsel,
rather than proceeding pro se as he desired, with said trial
having been conducted in violation of his self-representation
and due process rights under U.S. Const. amend. VI & XIV, Pa.
Const. art. I § 9, and 42 Pa.C.S. § 2501(b)?
2. Should Appellant’s conviction for [criminal trespass] be vacated
with prejudice owing to the Commonwealth’s failure to present
sufficient evidence . . . establishing (A) that he had gained
entry to the victim’s residence by voluntarily, rather than
inadvertently, breaking the windowpane in the bedroom
window through which he entered the home; or, alternatively,
(B) that, in entering via that portal, he had entered the home
through an opening not designed for human access?
Appellant’s Brief at 3.
Representation by Counsel
In his first claim, Appellant argues that he is entitled to a new trial
because the trial court violated his right to self-representation. Id. at 22-23.
Specifically, Appellant asserts that his request “should have been granted
since it was timely, it was unequivocal, and it was knowing and intelligent”
and “was denied only because the trial judge believed it to be an unwise
decision, which is an impermissible basis for denying pro se status.” Id. at
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33. In support, Appellant notes that he was fully informed about the
consequences of waiving his right to counsel, but unequivocally maintained
that he wished to proceed pro se. Id. at 38-39. Appellant concludes that
“his waiver of his right to counsel was valid, and his exercise of his right to
proceed pro se ought to have been respected.” Id. at 39. Therefore,
Appellant requests that we remand the matter for new trial. Id.
“A defendant’s right to act as his own counsel has long been recognized
under the law . . . . [I]t is implicit in the Sixth Amendment to the United States
Constitution and explicit in Article I, Section 9 of the Pennsylvania
Constitution.” Commonwealth v. Tighe, 224 A.3d 1268, 1280 (Pa. 2020)
(Tighe II); see also Faretta v. California, 422 U.S. 806, 821 (1975).
“Whether that right was violated presents a question of law, for which our
review is de novo.” Commonwealth v. Tighe, 184 A.3d 560, 566 (Pa. Super.
2018) (Tighe I) (citation omitted).
Our Supreme Court has stated that although a defendant’s right to self-
representation is guaranteed, it is not absolute. Commonwealth v. Brooks,
104 A.3d 466, 474 (Pa. 2014). To exercise the right to self-representation, a
“defendant must demonstrate that he knowingly, voluntarily and intelligently
waives his right to counsel.” Id. (citation omitted); see also Pa.R.Crim.P.
121(A)(2). Additionally, “to invoke the right of self-representation, the
request to proceed pro se must be made timely and not for purposes of delay
and must be clear and unequivocal.” Commonwealth v. Davido, 868 A.2d
431, 438 (Pa. 2005).
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“[T]he 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.” Id. 439. Specifically, our Supreme
Court has explained:
[C]ourts generally consider a myriad of factors in concluding
whether a request was unequivocal including: whether the request
was for hybrid representation or merely for the appointment of
standby or advisory counsel, the trial court’s response to a
request, whether a defendant has consistently vacillated in his
request, and whether a request is the result of an emotional
outburst.
Id. at 438–39 (citations omitted).
Generally, Pennsylvania courts have held that “a request for [pro se]
status is timely when it is asserted before ‘meaningful trial proceedings’ have
begun.” Commonwealth v. El, 977 A.2d 1158, 1163 (Pa. 2009) (citations
omitted). “In the context of a jury trial, the consensus is that proceedings
become ‘meaningful’ as soon as the selection of jurors begins.” Id.Further, our Supreme Court has explained:
To ensure a proper waiver, the trial court must conduct a “probing
colloquy,” . . .
The “probing colloquy” standard requires Pennsylvania trial courts
to make a searching and formal inquiry into the questions of (1)
whether the defendant is aware of his right to counsel or not and
(2) whether the defendant is aware of the consequences of
waiving that right or not. Specifically, the court must inquire
whether or not: (1) the defendant understands that he has the
right to be represented by counsel, and the right to have free
counsel appointed if he is indigent; (2) the defendant understands
the nature of the charges against him and the elements of each
of those charges; (3) the defendant is aware of the permissible
range of sentences and/or fines for the offenses charged; (4) the
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defendant understands that if he waives the right to counsel he
will still be bound by all the normal rules of procedure and that
counsel would be familiar with these rules; (5) [the] defendant
understands that there are possible defenses to these charges
which counsel might be aware of, and if these defenses are not
raised at trial, they may be lost permanently; and (6) 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, the
objection to these errors may be lost permanently.
If the trial court finds that the defendant’s waiver is not knowing,
voluntary, and intelligent after a probing colloquy, the court may
prevent the defendant from proceeding pro se.
Commonwealth v. Blakeney, 946 A.2d 645, 655 (Pa. 2008).
Additionally, our Supreme Court has reiterated that “a defendant’s
choice to proceed pro se must be honored out of that respect for the individual
which is the lifeblood of the law even when the defendant acts to his or her
own detriment.” Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012) (citing
Faretta, 422 U.S. at 834) (formatting altered).
Here, Appellant filed a motion seeking to waive his right to counsel and
proceed pro se approximately three months before trial was scheduled to
begin. At the hearing, Appellant confirmed that he wished to proceed pro se,
that he was aware of his right to counsel, and that he understood the
consequences of waiving that right. N.T. Hr’g at 24-25. Ultimately, the trial
court concluded that Appellant’s request was “ridiculous,” that Appellant had
“demonstrated [his] lack of ability to proceed on [his] own behalf,” and that
Appellant had “failed to demonstrate that [trial counsel wasn’t] doing his job.”
Id. at 27; 31-32.
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In its Rule 1925(a) opinion, the trial court further explained:
In this case, this court did not believe that [Appellant] knowingly
and intelligently waived his right to counsel. [Appellant’s] request
came just three months prior to the scheduled court date.
[Appellant’s] frustration with trial counsel stemmed from
[Appellant’s] erroneous belief that his case had been delayed by
the dilatory actions of trial counsel. On the contrary, the delay in
[Appellant’s] trial stemmed solely from the cessation of jury trials
due to the COVID-19 pandemic. Upon questioning from the court,
[Appellant] admitted that he did not understand the hearsay rule
and the exceptions thereto. [Appellant] did not know what a
motion in limine or a motion to strike for cause were. He asked
the court to provide him with a different court-appointed attorney.
It was clear to this court that [Appellant] did want counsel to assist
him at trial and that he did not knowingly and intelligently waive
his right to counsel. [Appellant] was simply frustrated with his
trial counsel. For those reasons, this court denied [Appellant’s]
motion.
Trial Ct. Op. at 12-13 (formatting altered).
Following our review of the record, we agree with the trial court’s
conclusion that Appellant’s request to proceed pro se was not unequivocal.2
See Tighe I, 184 A.3d at 566; Davido, 868 A.2d at 438. As noted previously,
Appellant initially filed a motion in which he claimed that trial counsel was
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2 As noted previously, the trial court also concluded that Appellant was not
entitled to proceed pro se because Appellant “demonstrated [his] lack of
ability to proceed on [his] own behalf.” See N.T. Hr’g at 32. However,
although the trial court appears to have believed that Appellant was incapable
of successfully defending himself at trial, we emphasize that “a defendant’s
choice to proceed pro se ‘must be honored out of ‘that respect for the
individual which is the lifeblood of the law’ even when the defendant acts to
his or her own detriment.” Spotz, 47 A.3d at 83. Therefore, to the extent
the trial court denied Appellant’s motion based on Appellant’s lack of
knowledge concerning the criminal court system, that ruling was erroneous.
See id. In any event, because we conclude that Appellant’s request was not
unequivocal, Appellant is not entitled to relief on this issue.
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ineffective and requesting that the trial court appoint new counsel on his
behalf. After the trial court declined to rule on Appellant’s pro se motion,
Appellant filed a motion requesting to proceed pro se. During the Faretta
colloquy, Appellant indicated that he wished to proceed pro se because he was
“better off,” without his current counsel, reiterated his displeasure with trial
counsel’s representation, and stated: “Why [can’t I] get a court appointed
attorney or get me bond and I can go out there and go to work and buy me
an attorney?” See N.T. Hr’g at 5, 31. After the trial court denied Appellant’s
motion to proceed pro se, Appellant filed an additional pro se motion again
reiterating his dissatisfaction with trial counsel’s representation and
requesting a new attorney. Based on the totality of these circumstances,
where Appellant has consistently vacillated in his request to proceed pro se,
we are unable to conclude that Appellant’s request for self-representation was
unequivocal. See Davido, 868 A.2d at 438. Therefore, the trial court
properly denied Appellant’s motion.
Sufficiency of the Evidence
Appellant also challenges the sufficiency of the evidence supporting his
conviction for criminal trespass, which was graded as second-degree felony.
Appellant’s Brief at 40-41. Initially, Appellant concedes that there was
sufficient evidence to establish the elements of criminal trespass, graded as a
third-degree felony. Id. However, Appellant argues that the Commonwealth
failed to prove the “breaking” element necessary for a second-degree felony
conviction because there was no evidence that Appellant “deliberately broke
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the windowpane” or that by “entering through the window[, Appellant]
entered through an opening that was not designed for human access under
any circumstances.” Id. at 47. Further, Appellant contends that he could not
be convicted for criminal trespass because “one reasonable interpretation of
the testimony presented at trial was that the windowpane shattered via an
involuntary act . . . we cannot say beyond a reasonable doubt that Appellant's
act in causing the windowpane to break was a voluntary act.” Id. at 48.
Therefore, Appellant requests that we vacate his judgment of sentence and
remand for further proceedings. Id. at 41.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018).
Pursuant to Section 3503(a)(1)(ii) of the Crimes Code, a person
commits criminal trespass, graded as a felony of the second degree, “if,
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knowing he is not licensed or privileged to do so, he . . . breaks into any
building or occupied structure or separately secured or occupied portion
thereof.” 18 Pa.C.S. § 3503(a)(1)(ii); (2). “Breaks into” is defined as “[t]o
gain entry by force, breaking, intimidation, unauthorized opening of locks, or
through an opening not designed for human access.” 18 Pa.C.S. § 3503(a)(3).
Here, at trial, the victim testified that she awoke in the middle of the
night to the sound of her bedroom window “being raised.” N.T. Trial, 9/14/21,
at 43, 47. At that time, the victim saw Appellant outside of the bedroom
window, which was located on the second floor of her residence. Id. The
victim stated that after she refused Appellant’s request to open the door and
told him to leave, Appellant entered the residence through the window. Id.
at 47-48. As a result, the glass window shattered. Id. The victim further
explained that after Appellant entered the home, the victim started screaming,
and Appellant “pushed [her] down on the bed . . . choking [her] and telling
[her] to shut up.” Id. at 48.
Following our review of the record, and in viewing the evidence in the
light most favorable to the Commonwealth, we conclude that there was
sufficient evidence to support Appellant’s conviction for criminal trespass. See
Palmer, 192 A.3d at 89. In light of the victim’s testimony, it was reasonable
for the jury to infer that Appellant committed a “breaking” when he entered
through the bedroom window and caused the glass window to shatter.
Further, as noted previously, the Commonwealth’s evidence “need not
preclude every possibility of innocence.” See id. Therefore, to the extent
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Appellant claims that the victim’s testimony does not preclude the possibility
that Appellant broke the window “via an involuntary act,” he is not entitled to
relief. For these reasons, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2023
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