J-S49043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANKLIN JOHONOSON                         :
                                               :
                       Appellant               :   No. 162 MDA 2018

          Appeal from the Judgments of Sentence December 20, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0002707-2017,
                           CP-36-CR-0002708-2017


BEFORE:      SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED NOVEMBER 20, 2018

       Appellant, Franklin Johonoson, appeals from the judgments of sentence1

entered in the Court of Common Pleas of Lancaster County, which sitting as

finder of fact in Appellant’s two non-jury trials transpiring on the same day

found Appellant guilty of Driving Under the Influence, 75 Pa.C.S. § 3802, at

____________________________________________


1 Our Supreme Court recently decided Commonwealth v. Walker, 185 A.3d
969, 977 (Pa. 2018), on June 1, 2018. Citing the official note to Pa.R.A.P.
341, the Walker Court prospectively determined that separate notices of
appeal must be filed when convictions arise from separate dockets. However,
our Supreme Court applied Walker prospectively from June 1, 2018, because
it was “contrary to decades of case law from [the Supreme] Court and the
intermediate appellate courts that, while disapproving of the practice of failing
to file multiple appeals, [appellate courts] seldom quashed appeals as a
result.” Walker, supra at 977. Here, Appellant filed his notice of appeal on
January 24, 2018, well before the Pennsylvania Supreme Court decided
Walker. Therefore, we will not apply Walker and we decline to quash
Appellant’s single appeal from judgments of sentence on separate dockets.


____________________________________
* Former Justice specially assigned to the Superior Court.
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the conclusion of each trial. Here, Appellant contends the trial court erred in

denying his motion to self-represent, which he made orally to the court at the

outset of his first trial. We affirm.

       Appellant was charged under separate dockets with two offenses of

Driving Under the Influence.2 Represented by the Public Defender’s Office,

Appellant filed a pretrial motion to suppress, which the court denied following

a September 22, 2017, hearing and submission of briefs on October 4, 2017.

Subsequently, Appellant filed a pro se motion to dismiss pursuant to

Pa.R.Crim.P. 600 on both dockets and a separate pro se motion to dismiss on

one docket.

       Appellant’s two non-jury trials took place on December 20, 2017. At

the outset of the first trial, the trial court informed Appellant and counsel it

was denying Appellant’s motion to dismiss that docketed case. N.T. 12/20/17,

at 3, 4. The court then asked if the Commonwealth was ready to proceed,

but defense counsel interrupted to alert the court of Appellant’s desire to raise

preliminarily “some issues” with the court.      N.T. at 3.   The court invited

Appellant to state his matters.




____________________________________________



2The two cases were listed under Lancaster County Docket Numbers 2707 of
2017 and 2708 of 2017, respectively. The second criminal information at
docket 2708 also included charges of Driving Vehicle at Safe Speed, 75 Pa.C.S.
§ 3361, and Restriction on Alcoholic Beverages, 75 Pa.C.S. § 3809.

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      Appellant first asked about the status of the second motion to dismiss.

The court explained the second motion pertained exclusively to the next case,

such that the court would defer its ruling until that time.

      Appellant was unclear about which motion pertained to which docket

number, and he reasserted that he had a motion in front of the court, to which

the court replied “Not anymore. I dismissed it – or denied it.” N.T. at 5.

Appellant asked either the court or counsel, “Would that be that one?”, to

which counsel replied, “That’s the wrong docket number.” N.T. at 5.

      Seeking to clarify matters for Appellant, the court asked counsel to

approach the bench and take the original motion “so you can review that with

your client.” N.T. at 5.   Counsel retrieved the motion and presented it to

Appellant, who reacted by stating, “And you said you didn’t get this at all?

You said you never got that at all?     This is what I was asking you about

yesterday, and you said you never received that at all yesterday.” N.T. at 6.

      Appellant then initiated the following exchange:

      APPELLANT:          Your Honor, I believe I’m going to represent
      myself, it that’s possible, because there’s so much going on in this
      case. I’d rather do that, and that way I know what’s going on.

      I was represented by – I don’t know your name – Straszynski or
      something – since – for a while. But yesterday was the first day
      I seen the suppression motion, the briefs that you ordered by
      October 19th, your order dismissing. I never even knew any of
      that was done. I never seen any of it till yesterday.

      THE COURT:       Understanding that you were in my courtroom
      during the suppression hearing --

      APPELLANT:        Right.

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      THE COURT:       -- so you saw that hearing being held.

      APPELLANT:       Yeah. Right. And you said that you were going
      to order the briefs filed, but I never seen the motion – the
      suppression motions. I was here for the hearing, but I never seen
      the motions. I never got copies of any of them.

      THE COURT:       You were here for the whole hearing, and you
      heard what –-

      APPELLANT:       Right.

      THE COURT:       -- the issues were.

      APPELLANT:       Right.

      THE COURT:        So you don’t need to see the paper motions.
      You’re also represented by counsel. All right. So counsel does
      not have to send you the briefs for your approval.

      APPELLANT:       No. I just wanted to see them to see what they
      were.

      THE COURT:       Well, that’s not going to change any outcome.
      We’re going to proceed with this case.

      APPELLANT:       Can I represent myself?

      THE COURT:       No. [Addressed to the Commonwealth] Go
      ahead. Call your first witness.

N.T., at 5-7.

      The first trial ended in a guilty verdict on the DUI charge. The second

trial also began with the court denying Appellant’s motion to dismiss, and it

ended with a guilty verdict on the DUI charge but a verdict of not guilty on

the remaining two charges. The court imposed a sentence of 30 days to 6

months’ incarceration in the second docketed case, as Appellant’s DUI



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conviction was deemed his second because of the separate DUI conviction in

the first docketed case. The court imposed a 30-day to six-month term of

probation for the DUI conviction in the first case, to run consecutively to the

sentence imposed in the second case.

      Appellant raises the following question for our consideration:

      DID THE HONORABLE TRIAL COURT ERR IN DENYING
      [APPELLANT’S] TIMELY AND UNEQUIVOCAL REQUEST TO
      PROCEED PRO SE PRIOR TO THE COMMENCEMENT OF
      MEANINGFUL PROCEEDINGS ON LANCASTER COUNTY
      DOCKET NUMBERS 2707 OF 2017 AND 2708 OF 2017?

Appellant’s brief, at 7.

             A criminal defendant's right to counsel under the Sixth
      Amendment includes the concomitant right to waive counsel's
      assistance and proceed to represent oneself at criminal
      proceedings. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,
      45 L.Ed.2d 562 (1975); Commonwealth v. Szuchon, 484 A.2d
      1365 (Pa. 1984). The right to appear pro se is guaranteed as long
      as the defendant understands the nature of his choice.[] Faretta,
      422 U.S. at 835, 95 S.Ct. 2525. In Pennsylvania, Rule of Criminal
      Procedure 121 sets out a framework for inquiry into a defendant's
      request for self-representation. Pa.R.Crim.P. 121.[] Where a
      defendant knowingly, voluntarily, and intelligently seeks to waive
      his right to counsel, the trial court, in keeping with Faretta, must
      allow the individual to proceed pro se. See Commonwealth v.
      Starr, 664 A.2d 1326, 1335 (Pa. 1995) (holding that a defendant
      must demonstrate a knowing waiver under Faretta). See also
      Commonwealth v. McDonough, 812 A.2d 504, 508 (Pa. 2002)
      (concluding that Faretta requires an on-the-record colloquy in
      satisfaction of Pa.R.Crim.P. 121, which colloquy may be conducted
      by the court, the prosecutor, or defense counsel).

             The right to waive counsel's assistance and continue pro se
      is not automatic however. Rather, only timely and clear requests
      trigger an inquiry into whether the right is being asserted
      knowingly and voluntarily. See Faretta, 422 U.S. at 836, 95
      S.Ct. 2525 (noting that the defendant sought to represent himself


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     by way of a clear and unequivocal declaration asserted weeks
     before trial). See also Commonwealth v. Grazier, 713 A.2d
     81, 82 (Pa. 1998) (holding that a Rule 121 colloquy is required
     only in response to a timely and unequivocal invocation of the
     right to proceed pro se). Thus, the law is well established that “in
     order 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), cert. denied, 546 U.S.
     1020, 126 S.Ct. 660, 163 L.Ed.2d 534 (2005).

           ...

            Generally, the courts of this Commonwealth have agreed
     with the federal courts and those of our sister states that a request
     for pro se status is timely when it is asserted before “meaningful
     trial proceedings” have begun. Commonwealth v. Jermyn, 709
     A.2d 849, 863 (Pa.1998) (noting with approval the Superior
     Court's reliance on United States v. Lawrence, 605 F.2d 1321
     (4th Cir.1979)). See Commonwealth v. Vaglica, 673 A.2d 371,
     373 (Pa.Super. 1996) (adopting “meaningful trial proceedings”
     standard utilized in Lawrence).

           ...

           A request to take on one’s own legal representation after
     meaningful proceedings have begun does not trigger the
     automatic constitutional right to proceed pro se. The decision
     instead is left to the sound discretion of the trial court.

Commonwealth v. El, 977 A.2d 1158, 1162–63, 1166 (Pa. 2009).

     In El, the defendant waived his right to a jury trial and was represented

by counsel during a pretrial suppression hearing.       The court denied the

defendant’s suppression motion, and counsel informed the court that the

defense was prepared to proceed to trial that same day, as most of the

evidence would consist of the non-hearsay evidence introduced during the

suppression hearing.   At that moment, the defendant asked the court for



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permission to represent himself at trial, but the court denied the defendant’s

request and commenced trial.

      On appeal, the defendant complained that the trial court erred in

denying him the right to proceed pro se. This Court affirmed judgment of

sentence, finding the defendant’s request was untimely, coming as it did after

he had waived his right to a jury trial.    As the request was untimely, we

reasoned, the issue of self-representation was not a matter of right but was

left to the sound discretion of the trial court, which was reasonably concerned

with disruption and delay. Id., at 1161-62.

      The Pennsylvania Supreme Court granted the defendant’s petition for

allowance of appeal to address the question of whether the defendant’s motion

to self-represent preceded “meaningful trial proceedings” such that it qualified

as timely. In a bench trial, the Court observed, “meaningful trial proceedings”

begin “when a court has begun to hear motions which have been reserved for

time of trial; when oral arguments have commenced; or when some other

such substantive first step in the trial has begun.” Id., at 1165. Meaningful

trial proceedings “should be ‘marked by a substantive, rather than a pro

forma, event.’” Id.

      The trial court’s resolution of the defendant’s time-of-trial suppression

motion and its prior acceptance of defendant’s jury trial waiver constituted the

beginning of such meaningful proceedings, the Supreme Court determined.

Hence, the defendant’s oral motion to proceed pro se was untimely. Id.




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      An untimely request thus becomes subject to the sound discretion of the

trial court, the Court instructed, with the understanding that there may be

reasons why the request, though belated, is nonetheless appropriate or

necessary. Id., at 1166-67. Still, a trial court may deny the request where

there exists a basis for concerns that an attempt to delay and disrupt

proceedings is at hand.

      Even where such concerns are not evident, the court should inquire into

a defendant’s reasons for the request. “But inquiry is not mandatory in all

instances, particularly where, as [was the case in El], the timeline of the

proceedings and circumstances surrounding them provide ample support for

denying the request to proceed pro se.” Id., at 1167.

      Reviewing the record before it, the Supreme Court in El discerned no

abuse of discretion in the denial of the motion:

      The record in this case demonstrates no . . . unreasonableness,
      bias, or ill will. [The defendant’s] request was not merely late.
      His suppression motion had been resolved, his jury trial waiver
      had been accepted, and the admission of evidence against him
      was nearly complete. Under these circumstances, there was no
      abuse of discretion in denying Appellant’s request to proceed pro
      se.

Id., at 1167.

      In the present matter, “meaningful trial proceedings” preceded

Appellant’s request to represent himself. Specifically, Appellant appeared with

counsel on the morning of his scheduled trials, the trial court denied a motion

to dismiss in open court, the court asked the Commonwealth if it was ready



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to present its case, and Commonwealth witnesses were present and prepared

to testify. While the court’s denial of Appellant’s motion to dismiss, alone,

was the kind of “substantive event” necessary to constitute a “meaningful trial

proceeding,” the remaining events, when viewed in conjunction with the

resolution of Appellant’s motion to dismiss, reinforce the conclusion that

proceedings had transcended a pro forma status.       Accordingly, the record

supports the trial court’s determination that Appellant’s motion to self-

represent was untimely.

      Moreover, the court did not abuse its discretion when it denied

Appellant’s request due to concerns of court delay and manipulation.       Our

review of the record shows the court provided Appellant the opportunity to

explain why self-representation was warranted, but Appellant could not

articulate a clear answer rooted in facts.      At best, it appeared that a

misunderstanding of counsel’s duties motivated Appellant, such that the court

reasonably concluded a basis for granting the request was lacking.

      On this point, the trial court considered the timeline and totality of

circumstances surrounding Appellant’s request, and it expounded as follows:

      Long before [Appellant] made his request to proceed pro se, his
      Counsel had filed a Suppression Motion on his behalf, argued that
      motion, and provided a supplemental legal brief on that motion.
      On the morning of December 20, 2017, minutes before the bench
      trial for both dockets was to occur and after I had denied his pro
      se Motion to Dismiss, [Appellant] stated “I believe I’m going to
      represent myself, if that’s possible . . . .”

      Moreover, the bench trial for both dockets had been scheduled
      since September 28, 2017. [Appellant] had almost three months


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      to request to proceed pro se. Making the request on the morning
      of trial could be for no other purpose than to create an
      unreasonable delay and to impair judicial economy. Therefore, I
      found that [Appellant] did not have the right to proceed pro se
      and allowed Defense Counsel to continue representation, which
      representation was competently and professionally provided.


Trial Court Opinion, 3/13/18, at 2-3. We perceive no reason to disturb the

court’s exercise of discretion in this regard.

      For the foregoing reasons, judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018




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